Briefly, UET asserts that a great thing or shapeless blob is granted in Article II: “the executive power.” (We naïve folk thought it just named a job.) Presidential power to remove subordinates (at will) follows directly. “Departmentalism” is another implication. This finds the executive to be a coequal interpreter of the Constitution along with Congress and the Supreme Court. (The states need not apply.)

The authors, both law professors, undertake a Maoist Long March through 43 presidencies, turning up many uses (and abuses) illustrating presidential power. It all amounts to a revealing, power-centric history of the United States. The authors purport to adduce “solid antecedents” for their view, such as James Wilson’s ruminations during the Pennsylvania ratifying convention.

Calabresi and Yoo’s key evaluative tool is how much a given president improved and empowered the mighty office. First up, George Washington supervised, removed, controlled all prosecutions (just like George III), called out militia, and granted pardons. Thomas Jefferson executed an embargo and bought Louisiana. Andrew Jackson was a Bonapartist (my term), who somehow embodied The People. Lincoln deployed, suspended, censored, “repelled” attacks, and invented presidential war powers by wedding the commander-in-chief clause to the “Take Care” clause. In fact, say the authors: “The Civil War was fought over the issue of the president’s authority to take care that the laws be executed in the South.” This is a peculiar focus indeed.

Much later, President McKinley’s foreign policy and war strengthened the office. Teddy Roosevelt had no war but nevertheless issued numerous executive orders to expand the reach of the presidency. Woodrow Wilson, war in hand, did much more. Under Franklin Roosevelt, “power exploded,” as he controlled, executed, and issued innumerable orders. Harry Truman got us into Korea with unitary fervor. When he unitarily seized certain steel mills, the Supreme Court declared that while the president has much unspecified power, it wasn’t quite as much as Truman asserted.

Leading largely by stealth, President Eisenhower removed officials, delegated authority, ordered federal troops into Arkansas, and expanded claims of executive privilege to thwart Senator McCarthy. The ill-starred John Kennedy issued numerous orders and had federal troops invade Mississippi. Lyndon Johnson pushed presidential power well beyond Kennedy, and Nixon stalwartly asserted yet more executive powers. The upward trajectory continued on through Reagan, Clinton, and the Bushes.

Other presidents weigh less in the unitary scale. James Buchanan, the authors’ “worst president,” failed to bring on war and grab power. Andrew Johnson at least defended the office against congressional Radicals. Hoover was only so-so but did much executing of Prohibition and issued the Stimson Doctrine. Even Jimmy Carter, called the “nadir” of executive power, at least ordered the freezing of Iranian assets. They also serve who only keep presidential powers intact. Naturally, this reduces the normal (“historically correct”) charges against them.

War meets with awkward treatment in this book. Popular wars or those too ancient to stir controversy may be mentioned, mostly as an arena for presidential heroics. The Mexican War squeaks by and the “Civil War” and World Wars I and II are noticed. The Spanish-American War gets an allusion. Oddly, the word “Vietnam” hardly intrudes on the discussion of Kennedy, LBJ, and Nixon. Neither would we ever learn here that anything warlike happened under George H. W. Bush or Bill Clinton. After all, an office best suited for getting us into wars might seem less lustrous if all the wars were reckoned in.

Now it comes out that there are two flavors of UET. Our authors only claim that whatever executive powers really exist belong to the president alone. They are quite reasonable and do not believe in certain “inherent” powers that George W. Bush asserted. But with so many undefined and nebulous powers so moderately claimed, how can the “moderate” UE theorists spy the “excessive” ones?

Much like Hobbes’s Leviathan, this is a good book: It shows us what is at stake. Is the case made? Should enemies of the UET concede? It might seem so, but there is a problem. It would be easy enough to write a lengthy work proving that for 200 years prominent American burglars have firmly asserted their “right” to break and enter. This would neither put our minds at rest nor establish the “right.”

So it is with the American executive. This interesting book demonstrates that most American presidents have been unwilling to abide by constitutional limits on their power, but not that their power was meant to be almost limitless.

Related posts:

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Martin, likely the most interesting Anti of all, is hardly known today, but Kauffman finds much of value while dealing unflinchingly with Martin’s public and private life.

With ancestors in America since 1623, Martin was born in 1744 or 1748 in New Jersey. He excelled at Princeton and studied law at Williamsburg, where he befriended Patrick Henry. Thence he went to Maryland, serving as a revolutionary propagandist and as attorney general of Maryland from 1778 on. He drank excessively and was often in debt.

Sent as a delegate to the select and secretive Philadelphia Convention, Martin was shocked by the impending coup underway. He discerned three factions: consolidationists like Alexander Hamilton, big-state men like James Madison, and a “truly federal” element. Together, the first two parties set the tone, pursuing a “counterrevolutionary” nationalist agenda to subordinate the states. Working with John Lansing, Jr. and Robert Yates (both of upstate New York) in an “ad hoc small state/states’ rights caucus,” Martin tried to limit the damage caused by the emerging system that Lansing called “a triple-headed monster”—a mythic theme, if ever there was one.

Before leaving the convention in disgust, these critics made interesting points too numerous to treat here. Oddly, Martin was the father of the so-called “supremacy clause,” the point of which was to subject the new Leviathan’s acts to the law. Federal Delphic oracles were not yet in the plan, and Martin wanted treaties and federal statutes subject to interpretation by the state courts. Having left the conclave early, Martin reported what he had seen to the Maryland legislature. For Kauffman, Martin’s The Genuine Information is “the Anti-Federalist Paper.” Martin continued the fight in the press, advocating a bill of rights, limits on the standing army, and reliance on militia.

But the Federalists managed to “control the debate” and won the day. Martin remained Maryland’s attorney general, never held federal office, and argued 40 cases before the U.S. Supreme Court. In court performances, he knew the law and the cases but was seldom fully sober. Hating the elusive Thomas Jefferson, Martin became “a states’ rights Federalist” but never apologized for his opposition to the Constitution.

Martin defended Federalist Judge Samuel Chase against impeachment and made Chase a martyr. It was not, Kauffman suggests, his finest hour. He also defended Aaron Burr against Jefferson’s charges of treason. Kauffman comments, “[Supreme Court Justice John] Marshall rule[d] for once as a strict constructionist” on whether Burr had actually levied war. In McCulloch v. Maryland (1819) Martin argued Maryland’s right to tax the Bank of the U.S., while Marshall wrote a “landmark” decision to the contrary—that is, a tedious essay in Federalist ideology.

Along the way Kauffman refutes some well-entrenched myths. Yes, Martin was long-winded, but his “diffuse” speeches were “coherent” and “struck a nerve.” Kauffman challenges the claim that Madison’s Journal of the Constitutional Convention is a spotless primary source, while Antifederalist eyewitnesses are wholly untrustworthy.

In Kauffman’s judgment, there was “no pressing external threat” in 1787 requiring central aggrandizement. He ridicules the Federalists’ “airy reassurances” and their easy assumption that Washington would be the measure of future presidents. Their sense of political scale was no better. Superior sorts far outshining local “demagogues” would, they said, invariably serve at the federal level. But of course those “immigrant” nationalists Hamilton and James Wilson (a “deracinated Scot”) and Madison, “the farsighted abstractionist,” were in a hurry. It is no surprise that Kauffman remarks upon the universal values and globalism of certain framers and that he turns some counterfactual horror stories on their heads. Quite insightfully, Kauffman takes the apparent American “nationalists” of the Old Dominion as Virginian imperialists out to dominate the federation.

For Kauffman, the Antis were “plain people” who saw the political scale “getting too big.” They wished to conserve the local and familiar. Today they seem rather prophetic. After ratification, Martin observed, “powers once bestowed upon a government, should they be found ever so dangerous or destructive to freedom, cannot be resumed or wrested from government but by another revolution.” In our present state we may wonder if the Antis’ New Jersey Plan and plural executive were such awful alternatives. We may let Martin himself have the last word. Speaking of the Great Convention, Martin wrote in March 1788: “Happy, thrice happy, would it have been for my country, if the whole of the time had been devoted to sleep, or been a blank in our lives, rather than employed in forging its chains.”

Related posts:

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This proposal was not really all that shocking: Such a program would have been consistent enough with the advertised purpose of certain phases of American land policy from 1776 on. American governments handed out land (however acquired) for over a century to veterans, settlers, land speculators, railroads, timber corporations, mining companies, and other parties. (I’ll give you three guesses which groups made out the best). Governments did so as a source of revenue, for geostrategic reasons, to win favor with voters, or to reward a small class of typically American operators who flat-out deserved to be rich.

In a new, revolutionary, and republican society, there was of course much talk about widespread property as the bulwark of republican freedom. But the talk was so general that Federalists and Republicans could share it, while leaving themselves plenty of room in which to create a small class of owners of a disproportionate amount of the public domain. Overall—from the founding land speculators down to 1893, when the frontier allegedly ran out—American land policy resembled in both theory and practice the kind of “privatization” we see under mercantilist Republican administrations. One landmark in the process was Johnson and Graham’s Lessee v. William M’Intosh (1823). Here, Chief Justice John Marshall undertook to write a long essay on the received theory of how property previously stolen by European kings or their agents is best conveyed. As was his wont, Marshall proved entirely too much, in as clear a case of Albert Jay Nock’s “copper riveting” of narrowly focused property rights as we could want. (See my “Albert Jay Nock and Alternative History,” The Freeman, November 2008.)

Southern agrarian Andrew Lytle noted that from the settler’s point of view the whole frontier process represented an attempt to get away from would-be aristocrats and other aspiring land monopolists. Consistent republican ideologists like Thomas Skidmore and George H. Evans agitated from the 1820s into the 1840s in favor of giving homesteaders first claim on the territories. Generally speaking, other claimants prevailed, while the politics of slavery and antislavery further complicated the matter. In the bigger picture, the Homestead Act of 1862 was the exception rather than the rule, as Paul W. Gates showed in a noteworthy 1936 paper (“The Homestead Law in an Incongruous Land System,” American Historical Review).

I cannot discuss here what an ideal policy based on “mixing one’s labor” with resources might have looked like. Suffice it to say that sales of thousands and tens of thousands of acres to individuals, land companies, and corporations were not especially consistent with any genuine republican ideal. The disappearance of most of the best land in California into the hands of a half-dozen individuals in a few decades comes to mind. But large-scale buyers had mixed their money with federal land officers, and that no doubt counts for something.

Meanwhile, the judiciary—state and federal—busily remodeled the common law and shifted the burdens of industrialization onto third parties, extensively modifying the older law of nuisance. Harry Scheiber finds that “law was often, if not to say usually, mobilized to provide effective subsidies and immunities to heavily-capitalized special interests [under] either ‘instrumentalist’ or ‘formalist’ doctrine.” Even existing doctrines of “public rights” and eminent domain came to serve business interests. Finally, federal judges’ discovery in the 1880s of corporate “personhood” in the Fourteenth Amendment perfected the Federalist Party’s original mercantilist program. All these changes importantly influenced just who would benefit from the American State-system of land tenure (to use Nock’s phrase) and its attendant modes of preemption and exploitation.

Land and Independence

Many writers have seen a special relationship between landownership and personal independence. And here we hit on what is perhaps the truest insight of republican theory—one taken up by many classical liberals. Briefly, this holds that a broad “middle class” of property owners is essential to the maintenance of free societies. The point is as old as Aristotle. On the negative side, in decrying the social effects of England’s fabled land monopoly, radical liberals like Percy Bysshe Shelley, Thomas Paine, Thomas Hodgskin, and John Bright implicitly affirmed the republican axiom.

A typical nineteenth-century American “self-help” book aimed at young men did not say, “Get a job working for wages within an increasingly intricate division of labor so as to enjoy a greater variety of consumer goods.” Instead, it said, “Get yourself a competency”—a vision fraught with republican implications suitably modernized. Working for wages, if one did it at all, was a temporary stage—to be endured while learning a skill or trade and abandoned later in favor of real or potential independence. This independence, derided in our time as “illusory,” left one free (within limits) not just from state interference but also from nineteenth-century employers. And if independence is illusory in our time, it is at least partly because the political activities of well-connected elites long since removed the preconditions of independence deliberately and systematically.

One key (but not the only one) to this much-sought-after independence was access to land, a theme taken up by Catholic writers Hilaire Belloc and G. K. Chesterton in early twentieth-century England. Sociologist Robert Nisbet commented that never, after reading Belloc, did he “imagine that there could be genuine individual liberty apart from individual ownership of property.” In any case, as historian Christopher Lasch put it, “Americans took it as axiomatic that freedom had to rest on the broad distribution of property ownership.” Perhaps Americans were wrong to believe such a thing. But let us examine the matter a bit more.

This American axiom receives support from those political economists who believed that the land/labor ratio importantly determines social structure. Edward Gibbon Wakefield somewhat gave the game away in the 1830s by opposing easy access to land in Australia, lest potential wage-earners try for self-sufficiency before spending “enough” years working for others. Marx chided Wakefield for letting this “bourgeois secret” out and was in turn chided by Franz Oppenheimer, Achille Loria, and Nock for not learning the right lesson from Wakefield’s recommendations on rigging the market.

H. J. Nieboer argued (1900) that where resources are “open,” few will work for big enterprises, and the latter will (if they can) institute some form of slavery. Evsey Domar writes (1970) that one never finds “free land, free peasants, and non-working owners” together. Why? Because where political leverage allows, aspiring lords and (literal) rent-seekers will eliminate the free land, the free peasants, or both.

Colonial Policies

With this theorem in view, let us survey some colonial evidence. Enterprisers in colonies have always wanted regular supplies of cheap labor for their projects. Although there is no evidence in favor of a “right” to such a thing, these prospective employers were never discouraged. Aided by colonial administrators with the same assumptions, they gradually overcame native economic independence. Land was the key, and neither the colonizers nor the natives doubted it. No matter how hard natives worked on their holdings, colonialists decried their “idleness”—and their uncivilized failure to work for wages.

We may therefore give the overworked English Enclosures time off (for now) and look at some other cases. Consider the Japanese colonial administrator in Okinawa who complained in 1899 that the typical Okinawan held land and therefore had low expenses and few wants. For these reasons, the native saw “no need to undertake any other business, nor to save money.” Since native lands were held informally, they could not be capitalized. Such people and properties did little for the great cause of development and, shortly, the Japanese government (!) denounced Okinawans’ customary arrangements as “feudal” and set out to modernize the island. American occupation later perfected this anti-agrarian revolution. Doubtless, however, much “employment” was created in the post-World War II Okinawan service economy dominated by the U.S. military.

Turning to English colonies in the Caribbean and Africa, we find comparable phenomena. England abolished slavery in the colonies in the 1830s. (Never mind that, as historian Eric Foner comments, “Through a regressive tax system, the British working classes paid the bill for abolition.”) By this time, English policymakers had embraced Adam Smith’s view that positive incentives motivated labor better than fear of starvation or draconian punishments did. But an ocean made all the difference, Foner observes, and new peasantries made up of former slaves were “seen in London, as in the Caribbean, as a threat not simply to the economic well-being of the islands, but to civilization itself.” John Stuart Mill’s famous defense of peasant proprietors “did not extend to the blacks of the Caribbean; their desire to escape plantation labor and acquire land was perceived as incorrigible idleness.”

And so Britain’s former slave colonies put vagrancy and other laws to work and crafted taxes aimed at restricting “the freedmen’s access to land.” As Foner puts it, “Taxation has always been the state’s weapon of last resort in the effort to promote market relations within peasant societies”—that is, to force people into markets in which they were not eager to participate. In Kenya the problem was one of “dispossessing a peasantry with a preexisting stake in the soil,” but colonial legislation proved up to the task. Foner concludes that in “the Caribbean and southern and eastern Africa . . . the free market [was] conspicuous by its absence”—its workings restricted “as far as possible” in the interest of the well-off and powerful.

Historian Colin Bundy has studied the economic rise and political-economic fall of a class of independent African farmers in the Eastern Cape Colony and other parts of South Africa. Various Cape Location Acts (1869, 1876, and 1884) sought to lessen “the numbers of ‘idle squatters’ (i.e., rent-paying tenants economically active on their own behalf) on white-owned lands.” Such peasant farming “conferred . . . a degree of economic ‘independence’: an ability to withhold, if he so preferred, his labour from white landowners or other employers.” Further: “Both the farmer and the mine-owner perceived . . . the need to apply extra-economic pressures . . . to break down the peasant’s ‘independence,’ increase his wants, and to induce him to part more abundantly with his labour, but at no increased price.” In their view, “Africans had no right to continue as self-sufficient and independent farmers if this conflicted with white interests.”

Bundy observes that “Social engineering on this scale took time and effort, but the incentives were powerful.” By way of a “one man one lot” rule under the Glenn Grey Act of 1894, legislators sought to keep African farming within “certain acceptable bounds.” (Here, finally, was a use for John Locke’s famous “proviso” about leaving enough resources for others!) Evictions increased after the Anglo-Boer War (1899-1903). Rents rose (Enclosure defenders, take note), and former tenants stayed on as laborers. Tax pressure on African farmers increased. This “employers’ offensive” from 1890 to 1913 ended successfully in the South African Natives Land Act of 1913, which effectively outlawed the practices under which a particular African peasantry had shown much success.

One supposes, in standard libertarian fashion, that agricultural employment increased thereafter along with land values. But that was the whole point: to proletarianize independent peasants by leaving them no option but to work for wages for Boers and Brits on farms, in mines, and elsewhere. Whether more “employment” was good in itself seems unclear. We can, at least, impute the outcome back to specific political intentions and levers. So much for the colonies, then—and all this without even mentioning the two greatest monuments to England’s defense of free markets: Ireland and India.

Telescopic Land Reform

Colonial bureaucrats and employers saw a definite connection between small-scale landownership and independence, and resolved to cut that independence short. By now we begin to see that “the subsidy of history”—to use Kevin Carson’s useful term—has been very large indeed. A number of libertarians have understood the problem at hand in pretty much these terms. They have tended, however, to dwell on instances far away from our own shores, writing about land reform in Latin America, South Africa, Asia, and other places. In the mid-1970s Murray Rothbard, Roy Childs, and others addressed the matter.

Rothbard wrote that “free-market economists . . . go to Asia and Latin America and urge the people to adopt the free market and private property rights” while ignoring “the suppression of the genuine private property of the peasants by the exactions of quasi-feudal landlords. . . .” In this vacuum, only the local communists appeared to support “the peasants’ struggle for their property. . . .” And so libertarians “allowed themselves to become supporters of feudal landlords and land monopolists in the name of ‘private property.’”

Decades earlier, that very conservative German liberal economist Wilhelm Röpke wrote that German history would have gone better had Prussia undergone “a radical agrarian reform breaking up the great estates and putting peasant farms in their place.” He adds: “Influential Social Democratic leaders opposed the transformation of the great estates in Prussia into peasant holdings . . . as a ‘retrograde step.’” Röpke called for freeing Germany from “agrarian and industrial feudalism” and the ills “of proletarization, of concentration and overorganization, of the agglomeration of industrial power and the destruction of the individuality of labor. . . .” In his view, the typical proletarianized worker or clerk wanted “a small house of his own with a garden and a goat shed, an undisturbed family life without training courses, mass meetings, processions, and political flag days; dignity and pleasure in his work, an independent if modest existence. . . .”

Why Go Abroad?

For Enclosure-like pressures on small-holders closer to home, we need look no farther than states like Kentucky, where courts vigorously enforced the full feudal rigor of the “broad form deed,” thereby ensuring the strip mining of many a mountaineer out of productive existence down to the early 1990s. With the system so long stacked in favor of big landholders and bankers, well subsidized by history, one begins to understand the popularity of those New Deal programs that promoted individual home ownership.

Economist Michael Perelman has confirmed a direct relationship between rural labor without independent means of support and the applied politics of English classical economists. The latter preached a great gospel of “work,” mainly for others, who ought to be doing this work. Except for a narrow class of Dissenting Protestant factory owners, those most vigorously espousing this gospel were not themselves noted for doing a lot of work. Together, however, owners and economists said in effect, “Work for us, join the armed forces, or emigrate, ye doughty Angles, Saxons, Jutes, and Scots.” And emigrate they did, leaving us with an American folk wisdom in which old times in England, Scotland, and Ireland were not that great. (This folk memory may have at least as much heuristic value as latter-day econometric claims that everyone became better off in the new division of labor.)

And so we return to Henry George’s problem: How did Americans manage as a society to seize so much land, incur whatever moral guilt goes with the seizures, and then not bloody have any of it? The chief mechanism was precisely the political means to wealth that Oppenheimer and Nock analyzed. The reason Brisco County Jr.’s “Robber Barons” struck the right note is that there were such individuals. California was a laboratory case, as George well knew, of the successful primitive accumulation of land by a microscopically small class of state-made men. As with ontogeny and phylogeny, Western accumulation recapitulated Eastern accumulation. From such causes arose the famous “end” of the frontier circa 1893. But open land did not so much disappear naturally as succumb to preemption. And then, with perfect timing, the conservation movement put enormous quantities of land beyond the reach of actual settlers.

As for those Americans who currently own property, they typically own it after 20 or more years of bank payments. Is land so genuinely scarce that a bank must always be in the middle? This remains our central question. Certainly, nineteenth-century allocations played a lasting role, and later political interventions added to concentrated property ownership.

And what of the promotion of “easy” home ownership in recent years? It is a product of 1) the widespread delusion, in the wake of Lyndon Johnson’s and Richard Nixon’s inflationary financing of the Vietnam War, that real estate constitutes the ultimate inflation hedge, and 2) the specific dynamics of the expansionist fractional-reserve banking under new rules (“deregulation”) increasing moral hazards for bankers.

There is also the unhappy fact of property taxes—our chief surviving feudal due. Fail to pay those, and the state enrolls a new owner on your former property. This reduces somewhat the fact of private property in land.

Independence, Republicanism, and Liberty

Some classical liberals and libertarians downgrade personal independence. Better to participate in the going order and enjoy a wider array of comforts, they say. But socialists and corporate liberals can play the same game—and have for over a century. It seems to me that those libertarians who join in this refrain rather willfully misconstrue a very simple point: They hail the joys of the division of labor, the higher degree of civilization (that is, more stuff) to be gained from dependence, interdependence, and sundry trickles of income and utility down and up. But already in 1936, Southern agrarian John Crowe Ransom noticed a flaw in this reasoning, writing, “[I]ncome is not enough, and the distribution of income is not enough. If those blessings sufficed, we might as well come to collectivism at once; for that is probably the quickest way to get them.” If greater choice among consumer goods makes up for lost independence, then the case for socialism (or X) would be clinched, provided socialism (or X) could deliver the economic goods (where “X” stands for any political ideology offering us the same stuff/independence tradeoff.)

I doubt we are necessarily “better off” merely because of employment. We need to know more, including why particular sets of choices exist in the first place. Back in the ’60s, Selective Service used to “channel” us into the “right” occupations by threatening to draft us. Given the parameters, our choices were “free.” If it’s that easy, then we are always free, no matter the historical and institutional constraints. Similarly, “To Hell or Connaught” was a choice, and never mind that Oliver Cromwell and his army arbitrarily created this particular prisoner’s dilemma. But perhaps I have leapt from choices among goods to choices between ways of life. Why? Let us look into this.

What if proletarianization is not the ideal form of human life? What if a complex division of labor is merely useful or convenient, but not a moral imperative? What if most of us are hirelings, well paid or otherwise, and then we learn what that status amounts to? The post-Marxist socialist André Gorz writes, “Capitalism owes its political stability to the fact that, in return for the dispossession and growing constraints experienced at work, individuals enjoy the possibility of building an apparently growing sphere of individual autonomy outside of work.” Our interest here is the “autonomy” mentioned, which sounds like a near cousin of “independence.” The sentiment seems sound enough, and the partial convergence of Röpke and Gorz is eye-opening.

Now in the view of Quentin Skinner (a modern republican theorist of note), unfreedom arises both from direct, forcible coercion and from institutional arrangements that make people dependent, since the latter always contain the possibility (realized or not) of arbitrary interference and coercion. Such discussions usually center on the form of state. Utilitarian liberals like Henry Sidgwick did not care about forms. If the Sublime Porte, Tsar, or King of England leaves us substantially alone, we are “free,” and that is that. In Skinner’s view, if those worthies can on their own motion change their policy of leaving us alone, we are not free, no matter what they are doing right now. Freedom requires that we not be menaced by latent unknown powers.

Freedom in this sense is liberty—a shared civic or public good. Like many real public goods it is not provided by the state, indeed the state may be its chief enemy. Law and settled custom may provide this public good, and consumer goods—the people’s pottage—do not compensate for abandoning such an order, where it exists. Today, people often work long hours to buy some independence. In another time, they began with some independence, and then chose how hard to work. Now we see, perhaps, the difference between choices among economic goods and past choices between systems structuring our choices.

Widespread landownership long supported a kind of liberal-republican independence. Perhaps we should reexamine the nexus and ask ourselves how, in Donald Davidson’s words, we “let the freehold pass,” and whether that was really for the best.

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His books include On Doing the Right Thing and Other Essays (1928), Jefferson (1926), The Theory of Education in the United States (1931), Our Enemy, the State (1935), Memoirs of a Superfluous Man (1943), and Cogitations (Nockian Society, 1985).

Nock believed that education, properly understood, was not the same as vocational training, and he famously took a dim view of politics. Conservative political scientist George W. Carey has lately (2004) named him as one of “the great conservative thinkers of the twentieth century.”

Perhaps so; but Nock was also profoundly radical. Jefferson and Our Enemy, the State are the keys to understanding Nock’s system, and inquiry into them sheds light on the relationship between Nock and the Old Right to Progressives and Progressivism and other strains of non-Marxist radicalism.

Nock’s Jefferson

Few would doubt that Nock is a pleasure to read. Jefferson packs interesting detail and observation into an admittedly off-center account of its subject. Thomas Jefferson is skillfully etched, foibles and all, and Nock notes favorably that he never speculated in land. Of his many inventions, Jefferson “never patented one” (being what we would now call a “freeware” inventor).

As ambassador to France, Jefferson supposed that country held 19 million paupers. He commented, “[W]herever there is in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural rights. The earth is given as a common stock for man to labour and live on.” Adding in royal monopolies, Jefferson ascribed to France’s productive classes “all the oppressions which result from the nature of the general government . . . their particular tenures, and . . . the seigneurial [feudal] government to which they are subject.”

In England, Nock writes, Jefferson “saw a population expropriated from the land, and existing at the mercy of industrial employers, with the enormous exactions of monopoly standing as a fixed charge upon the producer.” The English state was essentially the agent of privileged orders. Jefferson commented that while Englishmen were honest, their constitution (see Paine, Shelley), “from its nature, must render their government forever dishonest”; as politically organized, England comprised “a nation of buccaneers . . . seizing to itself the maritime resources and rights of all other nations.”

Republicanism Is Superior, But Not Ideal

Europe’s monarchies bred such evils naturally. Nock writes that Jefferson saw American republicanism as obviously superior. But ours was “not the ideal system”—Native American anarchism was (Nock’s summary). Leaning that direction, Jefferson sometimes theorized a radical decentralization of the states themselves into ward-republics. In decentralized wards the people could, in Jefferson’s words, “crush regularly and peaceably the usurpations of their unfaithful agents.” Here, Nock writes, Virginia might have “set a good example, most of all to New England, which had the system, but was aborting its fruit.” Jefferson attributed Shays’ Rebellion to (in Nock’s words) “an unfair pressure of debt and taxation, applied by collusion. . . .”

Nock observes that the leading Federalist ideologist, Alexander Hamilton, united “certain broad classes of the ‘rich and well-born’ with the interests of the government,” starting with public creditors. As for “the natural-resource monopolist,” his position, Nock says, “was as impregnable under the Constitution as his opportunities were limitless.. . . Hence the association of capital and monopoly would come about automatically. . . .” The Revolution’s ideals had masked concrete economic interests; what really divided the country was the Federalists’ political means to wealth. As for the Alien and Sedition Acts, Nock writes, “Americans were never sticklers for theory; they have been always more concerned with the inconveniences of despotism than with its iniquities.”

Jefferson thought Hamilton’s national debt could be paid in 15 years, but commented: “[W]e can never get rid of his financial system.” He complained to Samuel Adams of “an artificial paper phalanx overruling the agricultural mass. . . .” Nock wryly notes “unaccountable fires among the Treasury records” just before Jefferson’s appointees came in.

Nock is no unreserved admirer of Jefferson. He finds Jefferson’s assessment of the Federalists inexact: “[W]hat really animated and held these people together was a predatory economic interest.” Jefferson suspected English influence but saw only its “external and superficial aspects.” The Federalists, Nock writes, devised their fiscal system “by no means because it was British, but because there was money in it” as “the most effective engine of exploitation by the ‘rich and well-born’ ” (italics added).

Jefferson was slow to see the Constitution “as an economic document of the first order. . . .” “The four great general powers” it granted were over taxes, war, commerce, and control of western lands. Mercer of Maryland, John Taylor of Caroline, and Jackson of Georgia were quicker “to assess the economic implications of Hamilton’s fiscal system.” They were correct, and Hamilton’s funding scheme created new assets amounting to an eighth of the national “wealth” out of nothing and gave them to “a single vested interest.”

In Nock’s opinion, Jefferson’s “legalistic” opposition to Hamilton made him seem “a doctrinaire advocate of State rights and of strict construction; whereas he was really neither.” Nor was he opposed to commerce in general; he understood the difference between everyday banking and public credit. For reasons of trade, Jefferson had supported the new Constitution, provided that “the United States should be a nation abroad, and a confederacy at home.”

Taylor had a superior grasp of free-trade principles and of how taxes are shifted back to productive factors. When Jefferson complains to Taylor about political patronage, Nock writes laconically, “[T]he Constitution was meant to work that way, and it did.” Jefferson’s plan of paying off the public debt by selling western lands served to create “unlimited private land-monopoly.” As for his Louisiana Purchase, “if it was a boon to the agrarian producer, it was a godsend to the speculator.” Jefferson’s unconcern about land monopoly aided the interests created by the Federalists.

Worse, Jefferson had an unfortunate faith in economic warfare—retaliatory tariffs and embargoes.

“He never anticipated,” Nock writes, “the appalling economic consequences brought indirectly upon the country in 1807.” Discussing the background of the War of 1812 (and with 1914–1917 fresh in mind), Nock writes that instead of informing American shippers that they took their own risks in sailing into the Anglo–French naval war zone, Jefferson backed an embargo “wholly subversive of the principle of liberty”—“the most arbitrary, inquisitorial and confiscatory measure formulated in American legislation up to the period of the Civil War. . . .” It made three states solidly Federalist and raised threats of New England secession.

Jefferson also failed to foresee the Federalists’ permanent lock on the Federal courts. In 1800 he predicted that “a single consolidated government would become the most corrupt government on earth,” exclaiming: “What an augmentation of the field for jobbing, speculating, plundering, office-building and office-hunting would be produced by the assumption of all the State powers into the hands of the General Government.” Yet Jefferson was not “a doctrinaire enemy of centralization.” He did not see his own constitutionally doubtful actions, as president, as comparable to things his enemies did (in Nock’s words) “for the final purpose of putting the legality of economic exploitation forever beyond the reach” of electoral politics and “official responsibility.”

In a “land of unprecedented monopolist opportunity,” Nock writes, men strove “to get out of the producing class and into the exploiting class as quickly as possible.” Jefferson “never seemed aware that the prospect of getting an unearned dollar is as attractive to an agrarian as it is to a banker. . . .” His Republicans kept their name while resisting “any tendency within the party to impair the system” that made extra-economic profits possible; hence, over time, “the essential identity of the parties.”

Our Enemy, the State

Nock deployed and criticized Jefferson in aid of reinterpreting American history. He made his theoretical ground explicit in Our Enemy, the State. Nock wrote that work in the shadow of the New Deal, which he treated as part of a two-century process of American state-building.

In Nock’s terminology, government serves society. But the state intervenes positively to divide society “into an owning and exploiting class, and a propertyless dependent class.” Only “incompetent observation” from Aristotle to Paine, had obscured this distinction. Franz Oppenheimer found the state’s origin in conquest, making every historical instance “a class-state”; but the state game only paid where economic exploitation could arise. For Nock, access to land was the key to preventing exploitation. Nock cites Turgot, Benjamin Franklin, John Taylor, Theodr Hertzka, and Henry George on the point.

The burden of Nock’s “theorem” is simply that few people with alternative economic means would beat down factory doors for mere “employment”—and at abysmally low wages, under miserable, dangerous conditions and quasi-military “discipline,” and with long, arbitrarily set working hours. The best alternative means was a plot of land and, short of that, access to traditional commons, “wastes,” and so on. These access rights were not especially tragic-because-common, but were in fact collective private rights held by specific persons in well-defined, once-feudal jurisdictions. All England could not show up one day and dissipate these resources. These little rights, however, gave people an edge, a minimal independence useful for avoiding abject dependence on would-be employers. The latter hated these arrangements and duly enrolled the state to destroy them. Nock’s insight is that conquest, land engrossment, and destruction of economic options are not a one-shot deal, done in 1066, but can be repeated as needed, in an ongoing process favoring those with the best access to the state. This is why Nock uses the inflammatory word “exploitation.”

In actual (non-Whig) history, commercial interests gradually refit the state “to their own special interests, and strengthened it immeasurably.” Later, republican forms allowed the individual to imagine “that State action is his action. . . .” Following Oppenheimer, Nock contrasts the economic and political means to wealth. Feudal and merchant states were “higher integrations of the primitive State”; while states as such, “primitive, feudal or merchant [were] the organization of the political means.”

America’s colonial period unfolded in the period in England when merchants and financiers “saw the attractive possibilities of production for profit, with the incidence of exploitation gradually shifting to an industrial proletariat.” This, Nock says, was “the actual inwardness of . . . the Puritan movement. . . .” Growing individualism and social power coexisted with a “weak” state, but one strong enough to oversee “a thorough-going economic exploitation with relatively little apparatus of legislation or of personnel.”

The “Merchant-State”

John Locke justified this new state and sought “to copper-rivet . . . a doctrine of the sacredness of property” blocking state confiscations of the private property of important persons. Under Locke’s Whiggism-with-a-vengeance, the rights of property “took precedence even over those of life and liberty.” Even war powers, Nock writes, were to intrude on men’s lives and liberties “but not on their property” (italics added). Popular sovereignty provided additional leverage “for ousting . . . status to make way for the regime of contract . . . displacing the feudal State and bringing in the merchant-State.” Like everyone else, merchants felt the disutility of labor and wanted a better “access to the political means.” Parliament was their chosen instrument.

In America, colonial states developed from the chartered trading company as “an autonomous State.” Indeed, “the merchant-State was set up complete in New England long before it was set up in Old England.” As a result, “the merchant-State is the only form of State that ever existed in America”—“a purely class State,” benefiting particular commercial interests. (This was also true in Virginia, despite a feudal-patriarchal overlay.)

The merchant-State’s exploits were limited by the above-mentioned theorem that successful exploitation requires prior expropriation of surplus lands. In America, Nock says, the state-system of land tenure—“monopoly of the use-value of land” and “monopoly of the economic rent of land”—provided the expropriation needed. Nock seems to be saying, first, that states tend to grant more land than the title holder can actually use; second, that in such cases, the title holder realizes illegitimate profits from selling or renting the land to those who do use it. His third point would be that by encouraging the existence of large landed estates, the state and its beneficiaries take away from other potential users a livelihood they could otherwise have had. The bourgeois state let “men of all sorts . . . climb into the exploiting class,” and with “a practically limitless field for speculation in rental-values,” Nock writes, “land speculation may be put down as the first major industry established in colonial America.” If land use rather than speculation had determined American settlement, “our western frontier would not yet be anywhere near the Mississippi River.” Hence all theses on “over-population,” beginning with Malthus, were “utterly incompetent” because deduced from “legal occupancy instead of actual occupancy.”

Pro-English commercial legislation cramped American would-be wielders of the political means to wealth, as did the King’s attempt in 1763 to curb colonial land grabs. Such interference irritated American elites no end. Political independence would provide them with full access to (and control of) state power.

Feudal elites “bequeathed” the idea of the political means to the bourgeoisie. “No other view of the State was ever held in colonial America,” Nock writes. He observes that since English policy limited colonial use of “both the political and economic means” (italics added), the language of natural rights and popular sovereignty had great appeal. The Declaration of Independence spoke to those who wished to combine “unlimited economic pseudo-individualism on the part of the State’s beneficiaries, and a judiciously managed exercise of political self-expression by the electorate.”

After American independence in 1783, Nock writes, “administration of the political means was not centralized in the federation, but in the several units. . . .” The federal level “had no taxing power, and no coercive power,” while each state had its own “bounties, concessions, subsidies,” and more. All 13 states continued the monopolistic state-system of land tenure defined above.

The struggle over a new constitution pitted “speculating, industrial, commercial and creditor interests” against “farmers and artisans and the debtor class generally.” The new plan widened the field of the political means, or of a specific mix of economic and political means. The outcome was free trade inside a bigger tariff zone: “the closer the centralization, the larger the exploitable area.” (This is Nock’s reading, in effect, of Federalist 10.) The classes behind the Constitution wanted “the British system . . . on a nation-wide scale”; they prevailed because mercantile interests were compact and agrarians dispersed—an early Public Choice insight. The Constitution provided republican forms with little democratic content. Under it, “the rights of life and liberty were recognized by a mere constitutional formality left open to eviscerating interpretations,” and sometimes “to simple executive disregard.” The point was to serve large property, however gotten, indiscriminately.

The 1789 Judiciary Act tied up the bundle, and with John Marshall’s able help the Supreme Court became “the highest law-making body.” Nock comments on the later “fetiches” of the party system and such “constitutional principles” as “strict construction,” always abandoned in practice. Jefferson’s dubiously constitutional Louisiana Purchase aimed at strengthening “agrarian control of the political means”—an achievement reversed after 1861. Nock scorns the embedded dishonesty of the system, even when defended with slogans involving “states rights” and “rugged individualism.” Over the long haul, business had “most eagerly urged on the State to take . . . the successive single steps that lead directly to collectivism.” Similarly, he says, modern farmers were not family farmers, but manufacturers and speculators typically clamoring for state intervention.

Nock was not optimistic about the future. Characterless “mass-men” were helping the state absorb society. Alongside ideological factors, he remarks on the state’s “overweening physical strength.” In any case, “reforming and revolutionary movements” showed an “incorrigible superficiality,” especially when “the only modification . . . necessary is that the smallest unit should reserve the taxing power strictly to itself.” History’s usual logic went as follows: “Conquest, confiscation, the erection of the State,” and ending, after a regular series of internal developments, with the victory of state power over social power. Social dissolution came last. A few “alien spirits” would record the tale.

Three Strands of Nockian Thought

It will be useful here to note key elements of Nock’s thought. (Unless noted, quotations are from Our Enemy, the State.)

Jeffersonianism. In 1787–1788, Americans chose between 13 predatory organizations and a large one at the center. Nock sided with the defeated parties. Echoing John Taylor, he writes that Federalists “aimed at bringing in the British system of economics, politics and judicial control, on a nation-wide scale.”

Progressive History. Nock dedicated Jefferson to Justice Louis Brandeis and wrote, too, that as “an old friend” of historian Charles Beard, he followed Beard’s interpretation of the politics of the early Republic. To this “economic interpretation,” Nock brought a breadth and resilience sometimes under- or unemployed by his successors (if any). When Nock says that ideological lags sustain institutions, or that the American Whigs of 1776 did not care deeply about popular sovereignty and natural rights, he adopts Progressive views containing considerable truth.

Georgism. Nock did not take Progressive history uncritically, but creatively modified it. His grounding in Henry George gave systematic character to his work. This should not astonish us. Edmund Opitz, long-time FEE staffer and member of the Nockian Society, thought George’s followers were “among the best libertarians we have,” and Murray Rothbard commended Georgists for seeing there is a land question. Georgism gave Nock somewhere to stand outside the existing order. The central claim about primal state allocation of resources gave Nock great theoretical leverage (but does not require belief in George’s single tax).

In Nock’s hands, these three strands afford the basis for startlingly radical historical conclusions. Thus individualism and laissez faire had not produced the “horrors” of English industrialization, “for no such regime ever existed in England.” The horrors arose instead from “the State’s primary intervention,” which expropriated peasant producers and kept land from competing “with industry for labour,” while Adam Smith preached the gospel of “landowners and mill-owners.”

Like Oppenheimer, Nock posits “an original allotment of the political means,” or “original intervention,” in place of Marx’s “primitive accumulation.” So armed, he calls American railroads “speculative enterprises enabled by State intervention.” Transportation was “purely incidental”; the railroads were really about “land-jobbing and subsidy-hunting.” Nock follows the trail of plunder. The French aristocracy, he notes, was “a closed corporation”; but a republic, “by an indefinite expansion of the cohesive power of public plunder, admits a steady accession of outsiders.” This made Britain a predatory republic rather than traditional monarchy (Jefferson).

Seeing the “cohesive power of public plunder” as a near-law of history, Nock anticipates the “mode of predation” analysis pursued by Pierre Bourdieu, Sir Ernest Gellner, Joan Dyste Lind, Rothbard, and others. Here the state becomes “an anti-social institution,” establishing injustice through law, “which the State itself manufactures for the service of its own primary ends.”

Nock also attended to ideology, noting that “certain arrangements of words” kept Americans (“the most unphilosophical of beings”) from seeing “how far the conversion of social power into State power has actually gone.” Americans cared nothing for “the theory of things.”

“State” and “Government”

To bare such mysteries, Nock distinguished “state” from “government.” This language probably owes something to late nineteenth-century Hegelian–American political science, but Nock repositions the absolute, totalizing state as a great evil, and takes government as a mere, limited mechanism of local self-rule. The state-concept becomes a critical tool, whose Hegelian content withers under Nock’s surgery. From within Nock’s radicalism, we see the need to understand the system as a whole, where the test of any public measure is, “What effect has this upon the sum-total of State power?” This sets a critical standard of sorts, to say the least.

In the end, our interest lies not merely in the task Nock undertook, but in what we could learn by following his lead.

Additional Bibliography

• Charles A. Beard, The Economic Basis of Politics and Related Essays (1957 [1922]), 192–193.
• George W. Carey, “America’s Founding and Limited Government,” Intercollegiate Review, Fall 2003/Spring 2004.
• William T. Cavanaugh, “Killing for the Phone Company: Why the Nation-State Is Not the Keeper of the Common Good,” Modern Theology, April 2004.
• Edward S. Corwin, Total War and the Constitution (1947), 78–84.
• Raymond Crotty, When Histories Collide: The Development and Impact of Individualist Capitalism (2001).
• Frank van Dun, “Political Liberalism and the Formal Rechtsstaat,” http://tinyurl.com/66vytd.
• Bruce P. Frohnen, “Individual and Group, Natural and Acquired Rights: On the Need for Unclear Distinctions,” Ave Maria Law Review (2005).
• George Gale, “John Locke on Territoriality,” Political Theory, November 1973.
• David Gross, “Temporality and the Modern State,” Theory and Society (1985).
• Jonathan R. T. Hughes, The Governmental Habit: Economic Controls from Colonial Times to the Present (1977), and American Economic History (1983).
• Walter Karp, Indispensable Enemies: The Politics of Misrule in America (1974).
• Karl Marx, Capital, I (1967 [1887]), Ch. 33.
• José Ortega y Gasset, The Revolt of the Masses (1957 [1932]).
• Thomas Paine, Selected Writings of Thomas Paine, ed. R. E. Roberts, (1945), 10–12 (English constitution).
• Michael Perelman, Classical Political Economy (1984); Railroading Economics: The Creation of the Free Market Mythology (2006).
• Murray N. Rothbard, Power and Market (1970).
• Percy Bysshe Shelley, Political Writings, ed. R. A. Duerksen (1970), 43–45 (English constitution).
• Joseph A. Tainter, The Collapse of Complex Societies (1988).

Related posts:

1. Book Review: Mr. Jefferson by Albert Jay Nock Introduction by Russell Kirk and Our Enemy, the State by Albert Jay Nock Introduction by Edmund A. Opitz
2. Albert Jay Nock: A Gifted Pen for Radical Individualism
3. Nock on Education

As noted in the May Freeman, American revolutionaries mixed classical-republican and liberal political languages somewhat indiscriminately. Republicanism posited a relation between power and property in which independent proprietors were the bulwark of liberty. English critics of post-1688 Whig mercantilism deployed republican ideas, leading many historians to paint them as “agrarians” resisting capitalism, modernization, and social change. (“Social change” routinely looms large when historians wish to discount human agency.)

John Taylor’s writings show how an anti-mercantilist critique could be a liberal critique, despite detailed agreement with more strictly republican analyses. His Inquiry (1814), for example, was a belated reply to John Adams’s Defence of the Constitution of Government of the United States (1787–88), in which Taylor explicitly rejected Adams’s archaic-republican “social balance” between legally entrenched social orders. For Taylor, even such republican terms as “corruption” and “virtue” had different meanings in the American context.

Each of three historical ages, Taylor writes, had its own artificial aristocracy. The newest was a financial oligarchy—England’s modern reality. American Federalists wanted it here. Oddly, he notes, colonial Americans had spotted abusive taxation more quickly than independent Americans did. Having managed to “explode . . . the antiquated social compact dogma,” they succumbed to “modern law charter dogma” protecting state-created property as eternally inviolable.

Taylor treats “those possessions as property, which are fairly gained by talents and industry, or are capable of subsisting, without taking property from others by law.” Absent church establishments and feudal dues, taxation was “the only engine for distributing and balancing property” and dividing society into “payers and receivers.” National debt, too, was a key engine of oppression, reflecting the wish “to anticipate the riches of posterity and bequeath it [our] misfortunes.”

Championing “labour” and “agriculture” against “paper feudalism,” Taylor’s class-conflict analysis highlighted the role of the state. In a world where numerous interests battened on the state, that analysis was an important tool. Taylor’s political sociology shares much with the French Restoration liberalism of J.-B. Say, Destutt de Tracy, Charles Comte, Charles Dunoyer, and Augustin Thierry.

Like Jefferson, Taylor was conversant, not just with English economists, but also with Say and Tracy. But Taylor has flashes of complete originality. After all, none (or few) of the French or English writers had looked hard at the rising American system, which they wrongly fancied was repudiating European mercantilism. Taylor was breaking new ground.

In Tyranny Unmasked (1822), written mainly against protective tariffs, Taylor carried forward his political class analysis with great sociological penetration. Taylor writes that no “property-transferring policy . . . can enrich” workers or merchants in general. A few of the latter gain by “becoming bankers, lenders to government, or factory owners.” Particular “mechanicks or agriculturists” might also profit: “A few individuals are enriched by every species of tyranny.”

Expanding, in Inquiry, on the contrast between true and false (state-created) property, Taylor observes: “Despotick power strives to blend itself with a legitimate government, as paper stock does with private property.” False property wrapped itself in the protective mantle of justly acquired property, and we must understand Federalist grumbling about “leveling” political tendencies in that light. Beneficiaries of mercantilist (re)distribution did not want their gains called into question. Finally, Taylor observes that in England, the financial aristocracy profits more from war than feudal aristocrats ever did, by gaining new fields for investment and by funding “the war which made the conquest.” Increased taxes to pay the interest were a further boon to this class.

Banking and “Paper Feudalism”

State-connected banking—the Bank of England and the Bank of the United States—was a primary target of Taylor’s political polemics. Here, a false analogy with everyday commercial borrowing confused matters. In Taylor’s view, paper stock and public debt are not necessary to commerce, even if, coincidentally, “they exist together in England.” That paper and debt were “the bane” of commerce could be “inferred from the necessity of England to resort to war and conquest to cultivate her commerce.” Paper bills were “signs or representations” of real things and a tax on monetary circulation. Taylor is happy that the American Revolution “succeeded” without establishing permanent public debt in lieu of paper currency. Revolutionary currency lost value, to be sure, but it did not linger on as an excuse for future taxation. It disappeared, having done only limited harm.

Banking, as practiced, was generally bad. The advantage of coin is the difficulty of multiplying it. Noting that under hard money, any supply of money is optimal, Taylor notices the banker’s “privilege” of keeping fractional reserves. With interest counting as assets, and multiple lendings of the same capital, massive transfers of real goods went forward. Again Taylor calls bank profits a “tax” paid to privileged corporations. Taylor’s conclusion? “The tyranny of fraud is not less oppressive than that of force.”

Taylor compares patronage gained by banking with that obtained by conquest. Where patronage “is obtained by foreign conquest, as in the acquisition of India by England, the people still suffer by the unconstitutional power it confers,” even though domestic patronage was directly “more calamitous.”

Taylor has a good grasp of international flows of money and goods—paper, specie, and commodities—and spots an illusion later central to Keynesian economic policy: “[A]n advancement of the price of labour, pari passu, would produce neither gain nor loss.” He observes that a paper-military-patronage aristocracy does without titles of nobility, but is no less dangerous for that. “Money and armies are the instruments of power,” he adds.

Everyday Class Conflict

Taylor believed that great extremes of wealth invariably sprang from extra-economic coercion and deceit. Here, he resembles that self-taught radical, Thomas Paine. Taylor sounds vaguely “Marxist,” while explaining why protectionism does not help English workingmen: “[I]t has established a monopoly which operates only in favour of their employers, increases the expenses of government, and feeds unproductive capital by sacrificing productive labour”—especially in agricultural and seafaring occupations, where the workers have “very little capital except their bodily labour.” Here is Marx’s labour-power category several decades early.

Taylor did not need to be a “proto-Marxist,” however, because liberals already possessed (but did not always employ) a theory of plunder (“spoliation”) featuring the state apparatus as the major cause of social conflict.

State Capitalism

State-promoted business enterprise was at the heart of everything Taylor opposed. Echoing James Harrington (1656), he writes that “enormous political power invariably accumulates enormous wealth, and enormous wealth invariably accumulates enormous political power.” Asserting the parasitic character of state-created capital, he denounced transfers of real wealth from the economically productive and the aggressive alliance of artificial capitalists, corrupt courtiers, and officials who profited on them.

Taxes raised to pay public debt drained resources away from productive uses, and public credit funded the standing army, an instrument of constitutional subversion and empire. America, Taylor complains, has followed England’s road to ruin, under Federalists and Republicans alike.

These considerations shed light on Jefferson’s frequent references to the need for “periodic revolutions.” Given the ills attending state-subsidized capitalism, the people must have room to undo state creation of wealth and classes. The Yazoo scandal comes readily to mind. Georgia lawmakers handed out millions of acres of western land to those who bribed them. When a later legislature undid the act, Chief Justice Marshall declared the grants a sacred trust under the federal contract clause, in a textbook example of English “charter law.”

Corporations

n Taylor’s day governments still chartered corporations as privileged monopolies for specific purposes “clothed” with a public interest. Taylor saw “hierarchy” (the established church) and “corporation” as “innately despotic,” since both were “appurtenances of sovereignty” and, therefore, “appurtenances of despotism,” because sovereignty “is indefinite.” Taylor’s insight seems ideally suited for understanding the triumph of American state capitalism, once we see that general incorporation laws in the Jacksonian Era left state-like corporate privileges intact while widening the base of privilege. (See Frank van Dun, “The Modern Business Corporation versus the Free Market?” Freeman, March 2003, pp. 29–33, and “Personal Freedom versus Corporate Liberties,” Philosophical Notes, No. 76, Libertarian Alliance [London], 2006, pp. 1–19.) The deep roots of American corporatism suggest Taylor’s relevance across most of American history.

War Finance

Taylor writes that debt financing renders a war “twice suffered; by the living, who supply all the expenses of war; by the unborn, who supply an equivalent sum, to take up certificates of the expenses. . . .” Debt issues had actually hampered the American Revolution, since “war carried on by paper, is starved by peculation, and produces the utmost degree of publick expense, with the least degree of publick spirit.” (Here Taylor anticipated several Austrian School economists.)

Taylor’s views on war and its financing deepened his critique of the presidency and centralization. The point of Taylor’s antimilitarism was to avoid the fate of “European nations,” which “exist for the benefit of armies and navies. . . .” War was “the keenest carving knife for cutting up nations into delicious morsels for parties and their leaders.” It “swells a few people to enormous size”; “puts arms into the hands of ambition, avarice, pride, and self-love”; and “breeds a race of men, nominally heroes, mistaken for patriots, and really tyrants.” Finally, party discipline gave 26 percent of the legislature—effectively controlling 51 percent—“the power of declaring war.” Alluding to dear old National Security, Taylor reminds us: “Conquests abroad are rare, and no compensation for conquest at home.”

Britain: The Negative Role Model

nless we uprooted subsidized capitalism, America would become England—with Whig oligarchy, class conflict, economic crises, taxes, standing army, constant war, and a confusion of state-created and privately earned property. Britain was our negative role model, whose chief evils—empire and domestic oppression—were intertwined. “Compulsion” guarded English commerce: England “is enriched, because labour is her slave; goaded by a paper system, and she makes competition shrink by a fleet.” Britain’s relative internal freedom was little comfort to its dependencies, as “nearly demonstrated in the relations between England and Ireland, and quite so in India.”

Empire, Monarchy, Oligarchy

England brings us—and Taylor—to the structural logic of empire. The English state was “a confederation of parties of interest,” excluding the people, and consisting of “the church of England, the paper stock party, the East India company, the military party, the pensioned and sinecure party, and the ins and outs, once called whigs and tories,” held together by the monarchy. The English nation “has no government,” and “no British nation” existed beyond these interest groups. Taylor notes that Samuel Johnson, “the best informed tory,” favored “a brisk circulation of money.” But “a brisk circulation of power is also produced,” and Dr. Johnson “neglected to tell us . . . that money attracts power, and power, money.”

Taylor’s works abound with examples of his realistic grasp of social interrelations. He addresses two common arguments for consolidated power: “uniformity of religion” and “the difficulty of governing an extensive territory.” Europe had given up the former, and America the latter (in terms of monarchy). Practical knowledge being widely dispersed in a large state, “moral geometry” limits the “knowledge and will” of a king. Hence, “beyond his orbit, monarchy ceases and some anomalous government ensues; oligarchical, military, deputy-royal, tumultuous, or infinitely variegated by circumstances” and “neither the virtues nor vices of a monarch are felt at a distance from his person.”

“Monarchy only succeeds,” Taylor says, in “armies, garrisons, savage tribes and private families.” The wider the sphere, the more a king has only a “power of changing oligarchs.” This brings Taylor back to patronage, dependent on “the very worst kind of oligarchs . . . irresponsible and unknown.” Here indeed was a government—neither republic nor monarchy. Where a republic and a monarchy each had the “power of distributing wealth,” the monarchy was less burdensome, “because it is less expensive to gratify the rapaciousness of one, than of many.”

Were America governed as a monarchy, it could “only retain the advantage of extensive territory, by an oligarchy composed of deputy-kings, bashaws, satraps or mandarins.” As a decentralized confederation of self-governing members, America might expand indefinitely, “forming a great nation, by a chain of republicks.” Here, Taylor sketches out the possibility of republican expansion, as opposed to Madison’s belief in expansion as necessity.

False republics, Taylor says, have “the heaviest taxes.” The American party system and presidential patronage bring forth oligarchy—and presidential power, war—spreading patronage and power economically and geographically. Here, domestic and foreign concerns are joined.

Republican Nonintervention

Where national security intrudes, Taylor yields little to “realist” necessities. We Americans can resist the European system “more successfully than any other nation.” America, “possessed of extensive territory, happily removed from real causes of collision with other nations . . . is peculiarly favoured by providence” for avoiding “the artifice of legal wars,” to which small nations succumb.

The Balance of Power

Taylor denied that the laws of nations conferred sovereignty on any American government. In agreement with many liberal thinkers, he doubted the “balance of power” principle. That doctrine fostered war by assuming inherent hostility between nations, and was thus “the most complete invention imaginable for involving one combination of states, in a war with another.” (Neither was Taylor impressed with the “balance of trade.”)

Within the union, the balance-of-power idea fared no better. After the Missouri Compromise, geographical blocs defined by slavery loomed. Balance-of-power politics implied tinkering and brokering outside the Constitution; and a sustained antislavery campaign against the South as a bloc, he wrote, “would certainly destroy the union.” Taylor foresaw “civil” war, with massive death and destruction. He makes the unkind aside that, “if our consciences tell us that we ought to enslave freemen, to make slaves free,” reformers might perhaps crusade in Brazil, Cuba, or Africa, rather than at home.

Slavery and Colonization

Taylor, who himself owned slaves, describes slavery as “an evil which the United States must look in the face. To whine over it, is cowardly; to aggravate it, criminal; and to forbear to alleviate it, because it cannot be wholly cured, foolish.” He hoped the slaves might “be gradually re-exported” through colonization—a point where he is no worse than his contemporaries and successors, including Abraham Lincoln. Taylor could be quite realistic about slavery. His frequent assertions that financial exploitation is worse than slavery cut both ways. In mitigation, he pleaded: “The profit extorted from the negro slave is moderated by the immediate interest of his master . . . the master’s benevolence and . . . respect for his own reputation.”

Although Taylor, like most of his contemporaries, believed whites were intellectually superior to blacks, he denied that this justified establishing privileged castes. Free use of “intelligence” improved church and state, and we should expect the same result with “labour.” He asks, “Are slaves free, because their labour is made more productive . . . by the intelligence of their masters? Is the white population of the world justified in converting to its own use the labour of Africa, on account of superiority of intellect?” The answer assumed is “no.”

Against Institutional Fixity

Taylor writes that “If a number of people should inclose themselves within a triangle, they would hear with great astonishment, that they had lost the power of changing the form of the inclosure; and that the dead form of the triangle governed living beings, instead of living beings who created that figure, governing it” (italics supplied).

Taylor is not abandoning law, institutions, or everyday morality. He does want to avoid being locked, beforehand, into eternally fixed political institutions, including the federal union. He was eager to discredit artificial intermediate institutions. As, in effect, a liberal methodological individualist, Taylor took the society he knew as given and spent little time on naturally existing intermediate institutions, which in his day remained intact.

Agrarianism and Economic Development

Literary historian M. E. Bradford sees Taylor as a defender of “closed, rural, religious, and corporate societies.” Such republics were not anti-commercial, but neither did they need the state as economic broker, promoter, and subsidizer. Taylor has of course some agrarian themes, but unlike Jefferson, he never asked to be on the literally isolated “footing of China.” Taylor’s society was already agrarian, and he hoped his political liberalism (called “republicanism”) would, in a decentralized federation, allow agrarian communities to flourish.

Some might suppose that Taylor’s ideas would, in practice, have blocked American economic growth. Writing of the English Enclosures, French historian Paul Mantoux comments that if “the bulk of the rural population remained on the land, the triumph of the factory system might have come later, but it could not have been indefinitely postponed.” This suggests that “modernization” under republican liberalism was feasible enough, and that such modernization might have been slower, more organic, and less chaotic than the state-dependent path actually taken. (The federal center long set a bad example of providing wars for the “primitive accumulation” of Indian lands, making it unlikely that a market economy without massive state assistance would ever enjoy long-lasting political popularity.)

The Continuing Relevance of John Taylor

Taylor summed up his outlook as follows: “Our policy divides power, and unites the nation in one interest; Mr. Adams’s divides a nation into several interests and unites power.” For a brief period after his death, Taylor became a prophet for hard-money, free-trade advocates in the wider Jacksonian movement.

Taylor’s work did not have the effect for which he hoped, but it has its merits as a critical benchmark by which to measure what has happened to the Old Republic. In Taylor’s opinion, artificial aristocrats can only sustain their projects in the long run through some form of political despotism—consolidation, empire, or monarchy. These outcomes are all around us, and John T. Flynn could repeat all of Taylor’s themes in the 1940s and early ’50s. As historian J. G. A. Pocock writes, “America may have guaranteed the survival of the forms of corruption it was created to resist.”We cannot say that John Taylor failed to warn us.

Related posts:

1. The Constitutional Republicanism of John Taylor of Caroline
2. Book Review: Dumbing Us Down: The Hidden Curriculum of Compulsory Schooling by John Taylor Gatto
3. A Crisis of Political Economy

"Great power often corrupts virtue; it invariably renders vice more malignant . . . . In proportion as the powers of government increase, both its own character and that of the people becomes worse.”

—John Taylor of Caroline, 1814

John Taylor of Caroline has a secure place in the history of American political thought. Charles Beard’s historical writing did much to revive Taylor’s reputation in the early twentieth century. Eugene T. Mudge saw Taylor as a “prophet” of sectional struggle, while English historian M. J. C. Vile saw him as “in some ways the most impressive political theorist that America has produced.” New Left historian William Appleman Williams thought Taylor “made the best case against empire as a way of life.”

Other historians are dismissive. Louis Hartz chided Taylor for failing to become the American Disraeli, and Richard Hofstadter called him “a provincial windbag.” For Hof-stadter, Taylor’s Jeffersonian ideas were “negative” and “laissez faire,” ending as mere conservatism in the hands of “men like William Graham Sumner.” Manning Dauer saw Taylor as—paradoxically—the father of both Southern Agrarians and “states’ rights industrialists.”

Despite the attention given Taylor over the years, he remains (in my view) somewhat neglected, relative to his actual merits.

Raised in the home of his uncle Edmund Pendleton, John Taylor (1753–1824) attended The College of William and Mary, studied law, served as a major in the Continental Army, and became a successful lawyer and planter, owning several plantations and 150 slaves. He preferred his rural life, but entered politics to defend republican values, serving in the Virginia legislature (1779–81, 1783–85, 1796–1800) and filling out unexpired terms in the U.S. Senate (1793–1794, 1803, 1822–24). Taylor was clearly no archaic-radical republican like Jean-Jacques Rousseau. He did not find freedom in political participation as such, but he would step forward in a crisis, as his sponsorship of the Virginia Resolutions, damning the Alien and Sedition Acts, shows.

Taylor began as an “Anti-federalist.” Once the Constitution won ratification, he meant to hold the victors to the assurances they gave while promoting it. Generally, Taylor’s books (1814, 1818, 1822, 1823) arose from immediate political questions; they included attacks on federal economic policies and reasoned polemics against the centralizing decisions of John Marshall’s Supreme Court. A book by Taylor levels much learning and colorful language against pressing issues, in the manner of Jeremiah.

There are some awkward moments in Taylor’s literary style, as Adams, Jefferson, and John Randolph all noted, but there are also interesting compression and apt expression. Taylor was a secular preacher. Like William Faulkner, he is sometimes better understood when read aloud. He is also a stepfather of semantics and semiotics, as his running critique of “artificial phraseology,” or counterfeit language, shows. He was not an especially successful politician. Taylor served the public better as a critic.

Here I must at least mention the Forty-Years War between historians of the Republican School and the Liberal-Lockean School over early American ideology. For J. G. A. Pocock, classical republican themes—court versus country, the mixed constitution, balanced social orders, “virtuous” agrarian landowners—dominated revolutionary thinking. The Lockeans have Americans abandoning those in favor of abstract individualism and natural rights. But the two political “languages” co-existed throughout the Revolutionary era. What matters is their exact “mix.” Taylor, for one, employs republican language within a liberal framework.

Beginnings of Centralization

Not long after independence, centralizing Federalists replaced the Articles of Confederation with a constitution (1788) aimed at creating a mercantilist political economy. Their opponents coalesced as “Republicans,” broadly continuing the Anti-federalist cause. Federalist-Republican debates over the National Bank, excises, public debt, standing army, and tariffs echoed English debates after 1688.

Perhaps the worst tragedy that can befall an ideology is to have a political party professing allegiance to it come to power. (Think of “conservatism” today.) So it partly was after 1800, with Jeffersonian republicanism in power. Taylor defended Jefferson’s measures into 1804, but gradually drifted into the “Quid” opposition movement within Republican ranks. He railed against the administration’s half-Federalist policies. Along with John Randolph of Roanoke and a few other Republicans, he opposed the War of 1812—his own party’s war—as a “metaphysical war.” He rightly feared its potential for state-building.

For Taylor, the laws of nature suggested political equality instead of the fixed social orders found in John Adams’ archaic republicanism. Popular sovereignty “flows out of each man’s right to govern himself.” Similarly, Taylor traces the right of free speech directly to the right of self-government, which presupposes open discussion.

On solidly liberal ground, Taylor sees human nature as “compounded of good and evil qualities.” Men should frame governments “with a view to the preservation of the good and the control of the evil.” Self-interest was the only real constant in human affairs, and bad structural incentives might make governments “vicious.” Suitable structures would “secure the fidelity of nations to themselves,” even if the people were individually “vicious.” Here Taylor broke decisively with archaic-republican “virtue,” mixed constitutions, and social balance. Americans had chosen to divide rather than “balance” power, and in so many ways—vertically (federally) and horizontally (departmentally)—as to prevent serious abuse.

Protecting men’s lives, liberty, and rightful property was the purpose of government.

The goal of “political law” (the Constitution) was control over all representatives and agents. Taylor hails election, divisions of power, and an armed people (militia) as among the means to republican liberty. “Oaths of agents,” he observes, “are prescribed to enforce, not to destroy, the duties of agency.” Taylor’s overall conception thus far surpasses any tame notions of “checks and balances” or “separation of powers.”

Taylor frowned on notions of absolute sovereignty. Where he does use the word, he is normally referring to self-government, which results from men’s living together in a community. He does not explain community as arising by conventional social contract; indeed, he tends to reject his contemporaries’ half-digested Lockeanism, thereby postponing any final surrender of natural rights. (Here he comes close to Thomas Paine.)

There was, however, an actual contract—the Constitution—creating a limited union with a common agent subjected to structural, procedural, and substantive restraints on its power. This contract was between the peoples of the several states, not between the members of a single, aggregate American people as individuals. The constitutional agreement “derives its force, not from the consent of a majority of the states, but from the separate consent of each” (italics supplied).

Taylor denied the common assertion that the people, “having thought and spoken once, had lost the right of thinking and speaking forever.” If so, “its first will, must be its last will”—something Taylor found absurd. If, for example, the states should call a convention and approve a constitutional amendment previously blocked in the Senate, “any one state may refuse to concur in [it], because each state will resume its original right to refuse or consent, as being independent of each other in negociating the terms of a new union” (italics supplied). Implicit here is renegotiation of the agreement—and even secession in an extreme case. Any other conclusion conflicted with outstanding historical facts, as Taylor saw them.

Taylor observes that no governments—federal or state—could, in their status as subordinate agents, dissolve the union on their own. (The constituent peoples could.) And Taylor was so far from being a positive “disunionist” that, in describing the geographical advantages of the United States, he attributed Americans’ safety to their maintaining a union of some kind. But he was not an unconditional unionist.

Taylor always tried to bracket sovereignty. He supposed the states to possess full concurrent jurisdiction with the federal government, except where one or the other clearly had an exclusive delegation of power. He denied that the Supreme Court’s reasoning necessarily bound the state courts; decisions applied at most between the parties to a case. Taylor thought an occasional inconsistency of outcome preferable to letting the Supreme Court remodel all of American law. To concede final interpretive power to the Court would transfer sovereignty to the general government, as the Court imported consolidation into the Constitution. Finally, the Court would assert “an immoveable power of construction” over the Constitution, over the other branches, and over the people.

Republicanism and Nationalism

Taylor’s states-rights republicanism necessarily collided with the intermittently nationalist views of James Madison. Taylor was trying to unravel the knots Madison tied while confusing different audiences and, finally, himself. Taylor questioned Madison’s claim in Federalist 10 that a republic must be geographically extensive—and even expand farther—to prevent “factious” instability. Taylor viewed expansion as unwise, where it might undermine liberty through war, armies, debt, and taxes. And he had little awe of the Federalist Papers: “The English writers . . . contain whatever is to be found in the Federalist; but all their theories sunk, as soon as they were promulgated; in a vortex of corruption. . . .”

Republican adoptions of Federalist policies were many and galling. Even worse, Federalists remained entrenched as federal judges and appointments by Republican presidents had not changed this. Taylor’s Construction Construed and Constitutions Vindicated (1820) targeted John Marshall’s decision in McCulloch v. Maryland (1819) with its mighty assertions of federal power. “The unknown powers of sovereignty and supremacy may be relished,” Taylor writes, “because they tickle the mind with hopes and fears.” Further, “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings.” Later, “aristocracies and republicks. . . claimed the spoil.”

Sovereignty being “neither fiduciary nor capable of limitation,” Taylor wished to neutralize the concept. Americans had tried “to eradicate it by establishing governments invested with specified and limited powers,” so that “ungranted rights remain also with the grantors . . . the people.” (Alas, the principle that rights or powers “not granted” are not granted failed to impress either Marshall or Harvard Law School.)

Marshall’s decision turned allegedly “necessary and proper” means into actual unenumerated powers. Taylor recalled the 1760s, when Parliament asserted “it would be absurd to allow powers, and with-hold any means necessary or proper.” The colonies found it “more absurd to limit powers, and yet concede unlimited means for their execution.” The principle made the Constitution’s list of powers superfluous. Following Marshall, “[E]nds may be made to beget means” and “means . . . made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people.” Roads being “necessary in war,” Congress could “legislate locally concerning roads.” Congressional power over horses—and everything else—would soon follow.

Taylor believed that Americans had never knowingly adopted that European conception of absolute, unitary sovereignty, which licensed Marshall’s centralizing deductions. Americans supposed their governments to be their agents, not their rulers. Lately, however, American legislatures—state and federal—were aspiring to be “British parliaments,” and if the trend held, one must conclude that in American government, “no experiment at all has been made.”

Marshall made much of the supremacy, superiority, and so on of Congress in its proper sphere of action. Taylor answers, “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people.” The problem was not spheres, but sovereignty in them. Powers might exist, certainly, but granted by principals to agents. No one had “inherent” powers.

Sphere-Sovereignty Dogma

Taylor preferred the “occasional collisions” arising from concurrent jurisdictions. Instead of creating various institutions, each supreme in a sphere, our system featured “co-ordinate political departments . . . as checks upon each other, only invested with defined and limited powers, and subjected to the . . . controul of the people.” The Court’s sphere-sovereignty dogma overthrew this distribution of powers, because a “power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department.” Congress and the states might pass laws, each one constitutional, which “impede each other. . . . For this clashing the constitution makes no provision.” (Taylor’s view thus differs greatly from the highly artificial “separation of powers” espoused by “conservative” unitary-executive theorists working for the Bush administration.)

Having asserted Congress’s right to “remove all obstacles to its action,” the Court pretended to “hook every implied [power], to some delegated power” as a means. (Even today, a massive regulatory state subsists under the Commerce Clause, while global military enterprises masquerade as simple “defense.”) Taylor did not buy the argument.

Deductions from the international lawyers’ sovereignty-construct intruded into war and peace. Our system, Taylor writes, provided the necessary “powers of making war and peace . . . not as emanations from . . . sovereignty . . . but as delegated powers conferred by the social sovereignty, or natural right of self-government.” Otherwise, “the federal government, as having no sovereignty,” could not have declared war. That international law and lawyers “contemplate the powers of declaring war and making peace, as residing”—inherently—“in an executive department” meant nothing to us; the American system divided the powers and “does not intrust the president with either.”

So the question was “whether these laws of nations or our constitutions have delegated powers to our political departments.” If the former, the game was up, Marshall could go on deducing, and power would not—and could not—be limited. Interestingly, Taylor’s line of attack on these questions supplied materials for refuting United States v. Curtiss-Wright (1936) 114 years before the Supreme Court issued those latter-day deductions about “inherent” executive powers over foreign affairs and war.

Even with all these new, constructively discovered means and powers about, Americans remained complacent, safe in the knowledge that their officials were elective and responsible. For Taylor, representation and elections did not, by themselves, provide security against abuses of power. If elected officials managed to escape their bounds, then we would once again see that “no experiment . . . has been made.” As a mere slogan, “popular sovereignty” meant nothing to Taylor, and he foresaw the probable failure of republicanism if Americans adopted European sovereignty as its legal basis. Indeed, “a sovereign power over labour or property is less oppressive in the hands of an absolute monarch, than in those of a representative legislature” and “the error of trusting republican governments with this tyrannical power, has probably caused their premature deaths, because they are most likely to push it to excess.”

A government outfitted with “the complete panoply of fleets, armies, banks, funding systems, pensions, bounties, corporations, exclusive privileges; and in short, possessing the absolute power to distribute property,” was effectively “unrestrained” and tyrannical—and therefore not a republic in Taylor’s meaning. (Taylor has much to say about power distributing property, but I intend to treat that topic in another place.)

As party leader, aggregator, aider and abettor of factions, would-be war hero, and more, the president of the United States, whoever he might be, spearheaded the political evolution deplored by Taylor. As Taylor writes, the American executive was so constructed as “to excite evil moral qualities . . . propelling us toward force and fraud.” His exclusive control of military patronage, and its extension during war, inclined the president to initiate war. And now we understand Taylor’s commitment to a genuine, revitalized militia system; he wanted it for practical, political—even liberal—reasons, and not out of an attachment to Greek, Roman, or Renaissance Italian republicanism.

Taylor can find no “reason why war, peace, appointments to office, or the dispensation of publick money, should have been counted in the catalogue of the [executive], except for the efficacy of these powers in one man for begetting tyranny.” (He has elsewhere denied real textual, constitutional authority for exclusive presidential power over war and peace.)

More Power to the President

The treaty and appointment powers add to the president’s political weaponry; and to his already excessive military power “is subjoined a mass of civil power,” as well as patronage. Election “procures a confidence which has no foundation.”

The treaty power has long been prized and feared as a source of new, unknowable federal powers. As late as the mid-1950s, the Old Right movement sought to define and curtail that power through the Bricker Amendment. It took all the Eisenhower administration’s leverage to defeat the proposal in Congress. Under the Constitution, properly understood, Taylor finds no magic in the words making treaties part of the supreme law of the land. “On the contrary,” he notes, “the laws were to be made in pursuance of the constitution, and the treaties, under the authority of the United States.” And now he springs his trap: “The United States have no authority, except that which is given by the constitution” (italics supplied).

It followed that treaties could not alter or overthrow the Constitution. He gives an example: “Suppose the treaty-making power should stipulate with England to declare war against France; would that deprive congress of the right of preserving peace, with which it is invested by the constitution?” Presumably not, unless we must once more endure theories of inherency and sovereignty under international juridical deductivism.

James Madison, “father of the Constitution,” thought an extensive and expanding union would “dilute faction” and preserve liberty under an American mercantilism. Tying liberty to territorial expansion, Madison imposed an imperial logic on the Constitution he helped create. Taylor, spying the state-building possibilities of that program, came to oppose it. “A protector is unexceptionally a master,” he noted. Almost two centuries later, under another “Republican” regime betraying principles it never had, we may wonder who was the better prophet over all—Madison or Taylor?

Related posts:

1. The Political Economy of John Taylor of Caroline
2. Book Review: Dumbing Us Down: The Hidden Curriculum of Compulsory Schooling by John Taylor Gatto
3. The Second Amendment in the Light of American Republicanism

If originalism entails the problem Davies raises, it also has at least one more. Original intent, meaning, or understanding is inevitably multiple. John L. O’Sullivan, former editor of the Democratic Review, noticed this in 1862. The Constitution, he wrote, was America’s “ark of the covenant,” but “no man could ever exactly say what the Constitution was.” Its “elastic generalities of phrase” hid the deep divide “between the ‘Consolidation’ and the ‘State Rights’ parties in the Convention.. . .” Constitutional interpretation had been “twofold from the outset . . . Hamiltonian and Jeffersonian, or indeed Northern and Southern.” There was “not one . . . universally recognised Constitution, but two, widely different, and indeed conflicting” (my italics).

But what of our first constitution, the Articles of Confederation? For a time, they suited most of the people and the states. On the other hand, a vocal group in Congress was violently unhappy over the Articles’ failure to establish effective federal (national) power. Joseph Jones of Virginia, newly arrived in mid-1780, complained, “This Body never had or at least in few instances have exercised powers adequate to the purposes of war. . . .” Charles Thomson lamented in 1784, “A government without a visible head must appear a strange phenomenon to European politicians. . . .”

With new members, a dangerous optical malady often set in—“Continental Vision.” Writing to James Madison on February 20, 1784, Thomas Jefferson described the process: “[Young statesmen learn to] see the affairs of the Confederacy from a high ground; they learn the importance of the Union & befriend federal measures when they return.” Continental vision and “insufficient” power: Here was a dilemma, one that American nationalists—James Wilson, Madison, Alexander Hamilton, Robert Morris, and many others—determined to resolve. In their view, the country needed a mercantilist political economy, a standing army, public debt, and effective central taxation—things structurally and systematically interrelated. Nationalists wanted central power, as much of it as possible. Under the Confederation they made some interesting attempts to get it. We may begin with war powers.

Invoking vague war powers, early American nationalists urged that Congress ought to have certain powers and, therefore, did or “must” have them, neatly getting an “is” from an “ought.” Big on assertion, Congress spent the war complaining of its lack of real power, including power to tax. Yet mysteriously, Americans defeated Britain without anyone’s giving Congress many powers it craved or claimed. What actually happened?

Acting Without Authority

In practice, Congress coordinated revolutionary activity in the 13 incipient states and conducted diplomatic activity in their (plural) name. In so doing, Congress constantly recommended specific actions to the states, relying on them to carry the measures out. Before ratification of the Articles (1781), Congress often undertook measures for which it could show no obvious authority whatsoever, including the debt it created, its adoption of a European-style code of military “justice” for the Continental Army, and its creation of that army itself. Congress could only appeal to the wartime emergency, iron necessity, “public safety,” and the like. Under the Articles, nationalists complained endlessly of the powers Congress had “lost” with ratification. They referred of course to earlier congressional claims of inherent power—those being “proven” by the fact that Americans in their states had been good enough to cooperate. The price of following Congress’s advice and recommendations was to be told later that one had followed orders and obeyed commands.

American historians largely agree with the original claimants. Legal historian Edward S. Corwin was a case in point. Congress had, he admits, “no real governing power.” The states, on Congress’s recommendations, seized property, repressed Tories, suspended habeas corpus, and undertook “measure after measure that entrenched upon the normal life of the community drastically.” Regrouping, he concludes: “The fact, however, that this legislation came from the state legislatures whereas the war power was attributed to the United States in the Continental Congress served to obscure the fact that the former was really an outgrowth of the latter.”

This calls to mind the paradox, which I have noted previously (“On Misplaced Concreteness in Social Theory,” The Freeman, May 2006), whereby actual successful social action tends to be denounced as a dreadful evil or social problem. In the case at hand, cooperation serves to allocate authority away from those who acted. Whether that authority really entailed a spectral “war power” need not detain us. Whatever that last abstraction did for Congress from 1776 to 1781, and even under the Articles, 1781–1783, it did very little for it after 1783 without the war. Nationalists saw this problem coming. Late in the war, Gouverneur Morris hoped for “a Continuance of the War, which will convince people of the necessity of Obedience to common Counsels. . . .”

In the hunt for added congressional powers, nationalists employed deductions from International Law and pleaded Machiavellian necessities and moments. According to Merrill Jensen, they sought “to establish precedents [from which] they could argue the sovereignty of Congress.” Jensen stresses the interest of certain land companies in having their titles confirmed by the higher “government,” as well as the public creditors’ desire to have depreciated paper claims redeemed at somewhere near face value.

Hamilton hoped Congress would simply assert “undefined Powers” and see what they got away with. They should “assume Congress had once had such powers.” Boldness was needed to build a governing coalition of army, public creditors, and other nationalists. Madison was more indirect. In a Report to Congress in March 1781, he, James Duane, and James Varnum asserted a “general and implied power. . . to carry into effect all the Articles of the said Confederation against any of the States” but could find “no determinate and particular provision.” They therefore urged amendment of the Articles so that Congress could “employ the force of the United States” against states failing to meet funding requisitions.

After Rhode Island rejected an amendment to create a federal impost, Hamilton, Madison, and Thomas FitzSimons drew up a lengthy Congressional Reply in December 1782, calling the impost “a measure of necessity.” Congress, they urged, had “an indefinite power of prescribing the quantity of money to be raised.” This brought the impost “within the spirit of the Confederation.” Further, Congress, “empowered to borrow money,” had power “by implication, to concert the means necessary to accomplish that end.” Arguing against Rhode Island’s position, Robert Morris—federal financial czar—wrote on October 24, 1782, “[I]f a thing be neither wrong nor forbidden it must be admissible [and] if complied with, will by that very compliance become constitutional.” Now, mere acquiescence was “consent,” and consent bred legality. Meanwhile, having thought the thing over, other states had “rescinded” their earlier approval of the impost amendment.

Nationalist aspirations for revenue did not lessen with time. In a speech on January 28, 1783, Madison found “general revenue” to be “within the spirit of the Confederation.” Hamilton agreed, but un-bagged the cat by saying, “[I]t was expedient to introduce the influence of officers deriving their emolument from . . . Congress.” Madison often suggested naval blockades of offending states. He seems also to have spotted an implied power to coerce the states, even without an amendment. (Thirty years later, as president, Madison tried to coerce Britain and France with an embargo, but got the War of 1812 instead.) Even Governor George Clinton of New York spied an implied “Power of compelling the several States to their Duty and thereby enabling the Confederacy to expel the common Enemy.”

But Congress could not make the states ratify an amendment for a modest impost, much less one for their own coercion or blockade. For now, big notions drawn from Machiavelli, Vattel, and Pufendorf were of no avail. They did serve, however, in building both nationalist ideology and a theory of the union, and they yet serve historians who want philosophical foundations for the practical—even cynical—system the nationalists put over a few years later.

Another possible way out was the treaty power duly inscribed in the ninth Article of Confederation. In a centralizing mood, Jefferson himself, writing to James Monroe from Paris on June 17, 1785, advocated using the treaty power “to take the commerce of the states out of the hands of the states” and give it to Congress, which under the Articles had “no original and inherent power” over the subject. But Jefferson did not try to find implied powers in the Articles, nor did he deduce powers from some congressional sovereignty that “necessarily” arose under international law.

The treaty-power dodge reappeared much later, fueling the Old Right’s Bricker Amendment movement of the early 1950s. Senator John Bricker (R-Ohio) and his supporters wanted to keep Congress and the president from aggrandizing themselves under the vaguely worded treaty clause of the present constitution. They meant for their amendment, which failed in the Senate by one vote in February 1954, to meet the problem.

Utilizing Public Debt

Nationalists focused more and more on the public debt. Congress quit issuing credit money in late 1779. Thereafter, as Madison wrote to Jefferson on May 6, 1780, Congress became “as dependent on the States as the King of England is on the Parliament.” Nationalists saw this situation as completely improper. And so, Lance Banning observes, they “proposed to use the national debt to create a single nation—or at least an integrated national elite—where none existed in 1783.”

E. James Ferguson writes, “The Union was a league of states rather than a national system because Congress lacked the power of taxation. This was not an oversight.” Further, the federal debt itself was “inconsistent” with such a union. Jack N. Rakove adds, “Congress lacked the effective power or, once the Articles were ratified, the constitutional right either to levy taxes on its own authority, or to compel the states to obey its recommendations. It is certainly true that the states would never have ratified the Articles had they contained such provisions. . . .”

Nationalists feared the states would pay off the debt. Like the English Whigs in 1649, they needed the debt as the “cement” of union, as Hamilton called it. The debt was needed, in Rakove’s words, “to justify endowing Congress with independent revenues.” If revenue were found, public creditors and the underpaid officer class would rally to the cause of national power. All these advocates well understood the inflationary potential of consolidated public debt in the hands of fractional-reserve bankers. The economy would boom under their own profitable management.

Nationalists conducted an unrestrained campaign against the Confederation’s limits on power. “Water would not boil” due to the Articles. More important, nationalists discovered The People. Within doors, Federalists habitually denounced the people as a great rabble, the source of danger, wild enthusiasms, paper money, and attacks on property. Now they hastened to embrace John Locke’s empty marker of popular sovereignty to justify a takeover in the name of the people. Then they hustled the people off stage so the new machine “could go of itself.”

Social-Contract Theory

Anyone who reads Madison’s enormous journal of the Constitutional Convention will find the delegates arguing a mass of undigested social-contract theory big enough to sicken a hog. Here is an economical explanation: ambitious men with political, economic, and ideological motives wanted a central government with vague (therefore large) powers. They had, doubtlessly, a certain kind of public spirit. The system they created unfolded its inherent defects over time. To provide cover for their more specific goals—power, profit, prosperity, fisheries, security for slavery, land grabbing, glory, fame, good government—the framers issued great clouds of political “science” and theory that have confused Americans ever since. Madison was the outstanding mystifier, but there were others. Nationalists artfully decried the governments of the states while championing the Sovereign People, neatly dodging the question of who the people were and whether there were 13 peoples or one.

The constitutional deed and its defending rationales do not seem much grander than the origins of many other states. But as Jesse Lienesch has written, the founders succeeded in presenting themselves as demigods who saved the nation. It is a point of American orthodoxy to believe them. Charles Beard and J. Allen Smith, seconded by Albert Jay Nock, got much flak for recognizing that the Federalists had mixed motives and self-serving goals.

To win ratification, American nationalists, rechristened as “Federalists,” sold the new Constitution as a document involving “limited” and “enumerated” powers. On this reading, any power not obviously granted was not granted and the new outfit would not have it. Having cornered themselves verbally, Federalists showed their original understanding in the first Congress by enacting all manner of laws directly in conflict with their assurances to the ratifying conventions. Senator William Maclay of Pennsylvania especially noted the Judiciary Act, Hamilton’s funding system, economic coercion to force Rhode Island to ratify the Constitution, the War Department, a standing army—and federal consolidation generally. (See Maclay’s Journal at http://tinyurl.com/3ch2nm.) Seeing this, the Federalists’ opponents, with a different original understanding, argued for theirs as “Republicans” led by Jefferson, John Taylor, and others. They meant to hold the former promising parties to their pledges. Historian Garry Wills affirms that the ratifiers were somewhat swindled, but holds this to be a universal blessing that makes modern American governance possible.

And for all their high-minded talk about The People, popular consent, and so on, nationalists did not rule out violence. Benjamin Rush wrote Richard Price on June 2, 1787, that, if needed, “force will not be wanting,” since the wealthy and military classes wanted a new government. As Jensen writes, “It was power, not powers, that they wanted.”

Could the nationalizers have gotten their way by ingeniously stretching the Articles? One possible way would have been to filch the states’ powers and reassemble them into a collective power. Nationalists might have contended that a majority of congressional delegations—each delegation embodying, fully and immediately, its state’s separate sovereign powers—could, in concert, do any old thing, outside the Articles, that came to mind. Similar ideas had yielded results before the Articles came into force in 1781.

The nationalists were not the sort to be denied power. They might have made interesting inroads by discovering “indefinite” or “implied” powers, or by invoking the Articles’ “spirit.” Patiently accumulating “precedents,” they could cash them in, down the road, as grounded on powers that had always “been there.” But nationalists were not as patient as, say, the Supreme Court.

And certain structural advantages still remained to the states and the people(s). Their key advantage involved taxation. Congress had to ask the states for its money. It still seems a good arrangement.

Here our sub-theme—originalism—returns. It appears that original contestants contested many constitutional “meanings” at the very beginning. On this view, any simple originalism means clinging to original mistakes. The framers’ opinions were certainly original; how or whether they dictate to us today through the ether is another matter.

Works Used

1. Lance Banning, “James Madison and the Nationalists, 1780–1783,” William & Mary Quarterly, April 1983.
2. Edward S. Corwin, The President: Office and Powers, New York, 1957.
3. Thomas Y. Davies, “Correcting Search and Seizure History,” Mississippi Law Journal, vol. 77, 2007.
4. Jonathan Elliot, Debates in the State Conventions on the Adoption of the Federal Constitution, I, 1973 [1830]).
5. E. James Ferguson, “The Nationalists of 1781–1783 and the Economic Interpretation of the Constitution,” Journal of American History, September 1969.
6. E. James Ferguson, The Power of the Purse, Chapel Hill, N.C., 1961.
7. Paul Leicester Ford, ed., The Works of Thomas Jefferson, IV, New York, 1904.
8. Merrill Jensen, “The Idea of a National Government during the American Revolution,” Political Science Quarterly, September 1943.
9. Jesse Lienesch, “The Constitutional Tradition: History, Political Action, and Progress in American Political Thought, 1787–1793,” Journal of Politics, February 1980.
10. William Maclay, The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, New York, 1965.
11. Roger McBride, Treaties versus the Constitution, New York, 1955.
12. John L. O’Sullivan, Union, Disunion, and Reunion: A Letter to General Franklin Pierce, London, 1862.
13. Jack N. Rakove, The Beginnings of National Politics, New York, 1979.
14. Murray Rothbard, Conceived in Liberty, IV, New Rochelle, N.Y., 1979.

Related posts:

1. Lost Articles
2. The Constitution or Liberty
3. Book Review: The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic by Lance Banning

Even so, the Constitution—read anywhere near its apparent intent—might be worth hanging onto; but how can we get such a reading? Enter a new crop of “conservative” legalists to offer us one under the rubric of “originalism.” 

For this crop of presidentialists, which includes John C. Yoo, Roger J. Delahunty, David Addington, Jay S. Bybee, and Attorney General Alberto Gonzales, originalism centers on the Unitary Executive Theory (UET)—a bizarre doctrine of presidential infallibility allegedly prefigured by Alexander Hamilton. Under the UET, America ’s president is utterly sovereign in his sphere and sole judge of his own powers. 

The merest glance at America ’s founding suggests that no one really wanted full-bore elective despotism. Nonetheless, American presidentialists apparently find just that in the terms “war powers” and “commander-in-chief,” and in presidential dominance of foreign affairs. Yet their forebear Hamilton conceded that in war the president has “nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy” (Federalist 69). 

Presidentialists take John Marshall’s comment, in Congress, that the president is our “sole organ of communication” with other nations as entailing lots of power. And always, presidents assert powers and store up precedents. Presidentialists turn presidential duties, chores, and everyday practices into powers, and strong figures have built the office. In the Mexican War (1846–48), President James Polk established the practical precedent of maneuvering Congress into war. But it was Abraham Lincoln, above all, who asserted immeasurable war powers belonging (mostly) to the president, by combining the commander-in-chief clause with the president’s job of enforcing the laws. Of this, legal historian Raoul Berger writes in Executive Privilege: “[W]hen nothing is added to nothing the sum remains nothing.” But success succeeds, and later presidents— Richard Nixon and George W. Bush among them—have eagerly wrapped themselves in Lincoln ’s mantle of effectively suspending the Constitution to save the country. 

After Lincoln, presidential war powers rested up until 1898, when President William McKinley wielded them overseas. (McKinley issued a virtual ultimatum to Spain over Cuba a month before Congress declared war.) Theodore Roosevelt thought he could do anything not prohibited, at home and abroad, thereby neatly reversing the premise on which the Constitution was sold. Woodrow Wilson, too, had large views, but in 1917–1918 amiably shared with Congress the power of treading liberty under foot (conscription, for example), albeit with no new doctrines, merely existing bad ones. 

Worse luck, in United States v. Curtiss-Wright Export Co. (1936), conservative Supreme Court Justice George Sutherland fancied that during our revolution, George III’s prerogative powers somehow lighted on the union, hovering, extra-constitutionally, above successive Congresses, descending finally on the presidency. Berger deconstructed Curtiss-Wright, underscoring the break with England and the resulting institutional discontinuity. Sutherland’s opinion stands, approvingly cited by UE theorists. 

As Berger notes, Sutherland championed “a theory of inherent presidential power over foreign relations.” Berger quotes Louis Henkin, who adds that Sutherland’s assertion “carves a broad exception in the historic conception . . . never questioned and explicitly reaffirmed in the Tenth Amendment, that the federal government is one of enumerated powers only.”

Presidential power made great strides under Franklin Roosevelt, before and during World War II. FDR’s domestic emergencies and his wartime operations added much to the office. The Cold War extended these power-accumulations into an indefinite and interesting future. 

The Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), during the Korean War, reflected existing realities. Briefly, President Harry Truman, citing war powers, seized the steel industry to end a strike. People across the political spectrum, from organized labor to Republican Senator Robert Taft, denounced the action. The Supreme Court dodged the issue, holding that presidential powers did not go quite as far as Truman thought. 

Bottomless Well of Power 

Presidentialists take “The executive power shall be vested” (Article II) for a bottomless well. They see the specific duties mentioned as additional grants of power open to further (perhaps tortured) interpretation. They find further “inherent powers” arising from international law and Marshall’s sole organhood, and read the oath—“faithfully execute the office” and “preserve, protect, and defend the Constitution”—as allowing the president to violate laws in defense of the Constitution. Yet the charge that the president “take care that the laws be faithfully executed”(Article II, Section 3) seems to prohibit such maneuvers, although presidents have bent the words to their purposes, as when Lincoln “combined” them with the commander-in-chief provision. 

Presidential lawyers aggregate or separate clauses to widen power. Political scientist Richard M. Pious writes in American Presidency that presidential lawyers, construing congressional powers strictly, view “all remaining functions, powers, and duties [as] exercised by the president under doctrines of inherent powers, resulting powers, sovereign powers, and inclusions”—along with emergency and national-security powers. Finally, presidents—as a branch of government—assert a right to interpret the Constitution. Pious shows minimal respect for these notions, commenting that recent, barely elected presidents have felt a need to exploit their “legal” opportunities.

From 1947 on, anticommunist crusading fostered right-wing presidentialism. Meanwhile, on other issues the Supreme Court provoked a reaction toward strict construction. Since that was quite incompatible with Cold War policies, something had to give; when it did, right-wing presidentialists hijacked strict construction, reinventing it as absolutist originalism. Midway through this journey, Richard Nixon’s cries of “national security”—to becloud the Watergate affair—rang like a fire bell in the day. 

In his online paper “Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency,” political scientist Christopher S. Kelley writes that, frustrated by ongoing congressional “aggression” against executive power—the War Powers Act of 1973 and congressional “interference” with federal bureaucracies—lawyers in the Justice Department’s Office of Legal Counsel cobbled UE theory together in the 1980s. During war—as everyone “knows”—the feds may freeze the Bill of Rights, provided they thaw it out later. What seems new in UE theory is the assertion that the president is sole judge of his powers, with Congress and courts excluded from inquiring into executive undertakings. (Nixon claimed to be sole judge of executive privilege.) This would seem a recipe for tyranny. 

UE theorists speak of constitutional text, structure, and history; but their postmodern textual maneuvers, their homemade structures, and their lawyer’s history live on the edge of sudden implosion. In a 2003 paper, “Judicial Review and the War on Terrorism,” John Yoo, who had worked in the Bush 43 Office of Legal Counsel, asserted that while the judicial process exists for issues involving federalism, none exists for issues arising from war. He thereby nodded toward UE theorists’ oft-professed belief in states’ rights while separating all such “domestic” matters from important presidential activities. Yoo praised “the war powers system we have today in which the President initiates war, Congress funds it, and the courts remain aloof.” Further, the president may designate citizens as enemies, with no further proof or process needed.

Elsewhere, in “The President’s Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations that Harbor or Support Them,” Yoo and Roger Delahunty examine Article II of the Constitution where they see the mere words “the executive power shall be vested in a President”—the high-toned “Vesting Clause”—as unveiling a mighty fortress: “The executive power” (my emphasis). The authors assign the president “all of the executive power” and “full control“ of the military, adducing his power to “repel sudden attacks,” commending his “speed and energy.” Predictably, they hold that Congress has only powers “herein granted” and “enumerated,” while the president has “all other unenumerated powers.” Backed by “historical practice” and “precedent,” “the President alone” decides war and peace. This is textualism? 

The shades of Wilson, FDR, and Truman must be smiling. Few non-White House supremacists would read texts so liberally. A whole generation of conservative constitutionalists now surpasses Earl Warren in creative writing. Some conservatives foment empire, militarism, surveillance, and presidential hubris through their own juridical and judicial activism. 

Such are the raw materials of UET, but there are a few more points of interest. 

Unenumerated Powers Don’t Exist 

1. Presidents reach for “all other unenumerated powers”; but by a well-known canon of construction, powers not enumerated are not “granted” and do not exist. The claim assumes the very thing to be proven. In Executive Privilege, Berger writes that, “lacking an ‘enumerated’ power, action is illegal” and observes that “faithfully executed” implies presidential accountability to Congress. Further, “executive privilege” (withholding information) asserts a power the King had already lost. He adds that “the Framers vested many prerogatives of the Crown in Congress and denied them to the President.”Berger remarks on the “meager scope” of the presidency’s projected powers: “The words ‘executive power’ were thus no more than a label designed to differentiate presidential from legislative functions, and to describe the powers thereafter conferred and enumerated. To derive additional authority from this descriptive label is to pervert the design of the Framers. . . .” Further: “Madison and [James] Wilson stated that the rights of ‘war and peace,’ enjoyed by the King, were not included in the ‘executive powers.’ Patently, the Framers were determined to cut all roots of the executive power in the royal prerogative.” Absent royal prerogative, the U.S. president would seem to be constitutionally impotent as far as finding and beginning his own wars goes. Practical politics made the office what it is today. In An Inquiry into the Principles and Policy of the Government of the United States (1814), John Taylor of Caroline, a serious strict constructionist, characterized the presidency as driving us toward “force and fraud” and “monarchy, revolution, and an iron government.” Election was an insufficient guard; for this reason the states put their executives under severe restrictions.
2. Presidential lawyers dig out generalities about emergencies from Hamilton ’s Federalist essays but little on who holds the emergency powers. Is it Congress? As an executive officer under George Washington, Hamilton “discovered” what prerogative powers he could, and presidentialists get more mileage from this Hamilton. Given two Hamiltons, his arguments are somewhat suspect. (On prerogative powers in the Constitution, present or absent, see Forrest McDonald’s Novus Ordo Seclorum: The Intellectual Origins of the Constitution.) 
   

   Precedent Yields No Right  

3. UE theorists dwell on text, practice, and precedent. But whether successful usurpations—some large, some microscopic—amend the Constitution is not proven. Presidents have gotten away with things. As Berger points out, presidential stonewalling, which Congress has resisted for two centuries, yields no “right” of executive privilege. Yet much rests on the larger implications of executive privilege where successfully asserted. In Construction Construed and Constitutions Vindicated (1820), Taylor noted that the Stuarts collected precedents “because, successive encroachments terminate in conquest.” Moreover: “precedents, both good and bad, ought to have weight. . . . But discrimination is as applicable to precedents, as to any other species of evidence . . . [and] no improvement in civil government has ever been made, or can be preserved, but by a subversion of precedents, until a form is discovered incapable of corruption.”
4. UE theorists make much of the president’s job of repelling invasions of American soil. That this seldom happens is, for them, beside the point. Two much-mooted cases—Pearl Harbor and 9/11—drew forth no repelling. In 1846 President Polk was not repelling but was instead provoking. Nor was the Confederate attack on Fort Sumter, after months of talk, sudden, unexpected, or repelled. Given time, advocates might find some repelling, and so what? If the president failed to repel, defenders would still defend. Where is the mighty grant of “executive power”? Presidentialists hope to convince us that should a president ever defend American soil, he would be “making war,” thereby proving—apparently—that he may make war anywhere, anytime, at will. In “Emergency Powers and the Militia Acts,” legal scholar Stephen I. Vladeck does not concede a presidential power of repelling. Instead, such actions have rested on the Militia Acts of 1792, 1795, and 1807, and their successors, that is, on delegation by Congress. This greatly reduces what presidents can reasonably obtain from repelling. Indeed, they just break even with the states, which may “engage in war” when actually invaded. 
5. For UE theory, “separation of powers” works overtime, albeit rather cynically. Berger writes: “the separation of powers does not create or grant power; it only protects powers conferred by the Constitution. . . . [T]o argue from the bare fact of a tripartite system of government, without preliminary inquiry into the scope of each of the three powers, is like invoking the magic of numerology.”In any case, classic separation took “checks and balances” rather seriously. But if the president has his own sovereign sphere, how is he checked—or balanced.This brings us to John Taylor’s attack on “spherical sovereignty” in Construction Construed. (All emphasis has been added.) In McCulloch v. Maryland (1819), Chief Justice John Marshall sustained the supremacy of Congress in its sphere of action. Taylor agreed that “‘sphere’ conveys an idea of something limited,” but wondered “how this word . . . can be converted into a substantive uncircumscribed, by the help of the adjective ‘sovereign.’” He continues: “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people. . . .”Now Taylor is not objecting to spheres, but to sovereignty anywhere, since American principles demand actual delegation by real principals to real (and mere) agents. No one has “inherent” powers. 

   Taylor continues: “There is no phrase in the constitution which even insinuates, that the actual divisions of power should be altered or impaired by incidental or implied powers.” Further: “Individual spheres or departments are easily persuaded, like Kings, that a subordination to themselves would be better for a nation, than the occasional collisions produced by a division and limitation of power.” And here was the danger: “A jurisdiction, limited by its own will, is an unlimited jurisdiction.” 

   Taylor thought “occasional collisions” better than sovereign institutions. Rather than making Congress, executive, or court supreme in some realm, the Constitution created “co-ordinate political departments, intended as checks upon each other, only invested with defined and limited powers, and subjected to the sovereignty . . . of the people. . . . ”

   The Court’s new-fangled “spherical sovereignty” overthrew the division of powers: “A supreme power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department. . . .” Under “the concurrent power of taxation,” Congress and the states “may each pass a law, both of which may be constitutional, and yet these laws may clash with, or impede each other. . . . For this clashing the constitution makes no provision.”

   According to Taylor , the Court was unearthing prerogative powers for Congress, including one to “remove all obstacles to its action.” Marshall sought “to unite an extension of power with an apparent adherence to the words of the constitution.” Under this dodge, “it was necessary to hook every implied, to some delegated power. . . .” This is still the practice of a continental state that micromanages the life-world under color of regulating commerce and passes worldwide military empire off as “defense.” 

   On Taylor ’s reading, no branch derives sovereign powers from idealized separateness. Powers, where they exist, were delegated by living Americans, not by some cloud-borne eighteenth-century paragraphs “mediating” sovereignty to federal departments. 

6. UET’s “flexible system for going to war” (Yoo’s words) seems better fitted for finding and having wars than for actual defense of American soil. Here, where sovereignty and war powers conjure and conspire, UE theorists build on Marshall ’s gutting of enumerated powers and Sutherland’s “inherent” prerogatives; but Taylor whipped them before they were born, even on war powers: 
   

   . . . [T]he case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not other wise have declared it. . . . As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations from the principle of a sovereignty in governments, but as delegated powers.. .. No powers in relation to war are derived from . . . sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations. . . .”[Emphasis supplied.]

   Presidential “signing statements,” grounded in UET, proclaim a departmental “reading” of what the president is signing into “law.” Unwilling to veto, President Bush says he will enforce the law (or not) as he sees fit. The attempt came before the name. In President: The Office and Powers, constitutional scholar Edward S. Corwin wrote of its having been undertaken in 1946–1947: “For a court to vary its interpretation of an act of Congress in deference to something said by the President at the time of signing would be . . . to endow him with a legislative power not shared by Congress.”

   Signing statements aim at influencing gullible jurists and, ultimately, at excluding the courts from even their normally feckless protection of liberty during alleged wars. (On this, see Richard E. Eliel’s “Freedom of Speech,” American Political Science Review, November 1924.)

Sovereignty, Unknown Powers, Strict Construction 

If we forsake “originalism,” as we probably should, we need not give up strict construction. Any serious perspective must begin with contemporary comparisons of the Constitution as advertised with the Constitution as put into practice. Taylor, Spencer Roane, and others heard certain promises in the ratifying conventions and saw them broken once the promising parties were in office. Their critique rose from an unavoidable contrast. (For how quickly the Federalists’ real program emerged, see The Journal of William Maclay, U.S. senator from Pennsylvania , 1789–91, available online and in book form.)

In Construction Construed, Taylor went to the fundamentals. He began with “powers of sovereignty and supremacy [that] may be relished, because they tickle the mind with hopes and fears. . . .” Yet “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings . . . [and] aristocracies and republicks have claimed the spoil.” In any case, the “idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous.” (Now, of course, we do both.)

“Sovereignty” was “neither fiduciary nor capable of limitation.” In America, we “eradicate[d] it by establishing governments invested with specified and limited powers,” under which “the people or the states retain all the powers they have not bestowed . . . [and] ungranted rights remain also with the grantors . . . the people.” This canon of constitutional interpretation, by which powers “not granted” are seen as not granted—hence nonexistent—failed to impress Marshall and others. With more experience of the Constitution, we might judge Marshall wrong.

Taylor declined to see the words “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States”( Article I, Section 8, 18) as a charter of unknown powers; Marshall, however, saw “necessary and proper” as licensing numberless convenient and apposite means, and alongside spherical sovereignty, this was his key innovation.

Lacking certain desired powers, Congress could not simply grasp them by calling them means “necessary and proper” for fulfilling actually enumerated powers. Before the Revolution, Taylor noted in Construction Construed, Parliament contended for unlimited means of war: “The colonies replied, that it would be more absurd to limit powers, and yet concede unlimited means for their execution . . . .” Marshall ’s repositioning of “means” undid the whole idea of enumeration. Taylor wrote: “As ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards.”

Later court decisions have awarded the president the same “necessary and proper” latitude that it earlier gave Congress. The process is cumulative, but if the doctrine was unsound when aiding Congress, it remains so when fattening the executive.

Marshall undermined American political reasoning, said Taylor , “by inferring the powers of sovereignty from a delegated power; as the power of establishing banks, from the power of taxation . . . .” But reasoning from international law to American government was a mistake. Where foreign threats existed, “the constitution . . . disregarding . . . the laws of nations, assigns the power . . . to a department [Congress], not as being sovereign, but as being a trustee . . . [which] alone possesses a right to involve the United States in war; and no other department, nor any individual, has a better right to do so, than a constable has to bring the same calamity upon England. As the laws of nations cannot deprive congress of any power . . . so they cannot invest congress or any other department, with any power not bestowed by the constitution. . . . [Those laws] contemplate the powers of declaring war and making peace, as residing in an executive department; but the constitution divides them, and does not intrust the president with either” (emphasis supplied).

Contesting institutional sovereignty derived from international law, Taylor aimed right at UET theorists’ favorite things: the war powers and their location in the system.

Can Amendment Rid Us of This Turbulent Office? 

Taylor ’s point is, very simply, that if the government has some general “sovereignty,” then it, or some branch of it, is the final judge of its actions. If the government is not sovereign, then the unknowably vast powers for war, emergencies, and so on must remain with the people, as individuals, families, or communities—a disturbing thought, even for believers in such powers. Such a theoretical placement might lead to individual civil disobedience and nullification by communities. Short of such drastic experiments, are there any constitutional cures for unitary-executive disease? Perhaps so. This brings us to our only remaining article of faith, the amending power. 

Talk about unknown powers! We seem entirely free to abolish the executive in all its unitarity. Amendment, however, would require a train of disasters irrefutably stemming from that office. We have the disasters; the historical dice have been cast, but where will they land? 

Meanwhile, on June 29, 2006, the Supreme Court said a few words on our subject, putting a serious dent in UE theory (Hamdan v. Rumsfeld, Secretary of Defense, et al.). According to the majority, the president cannot just set up his own courts with their own procedures tailor-made for producing convictions, even against “unlawful combatants.” If, however, these so-called courts should conform to existing legislation (Uniform Code of Military Justice and such) becoming thereby more court-like, they might pass muster. 

On larger questions, the decision moves us back, at best, toward the inconclusive and subjective language of Youngstown Sheet & Tube Co., which, as noted, stated that presidents have large war powers but that Truman had overreached them. The courts, having long ago justified the deeds of Lincoln and others, can only go so far. But the decision is better than nothing, and has forced Congress, though the Military Commissions Act, to sustain the President by legislation. This has partially restored the logic of the system without, however, doing much for our liberties or for U.S. conformity with international law. 

And on August 17, Judge Anna Diggs Taylor of the federal district court in southern Michigan struck another blow against UET. In ACLU v. NSA, she found the Bush administration’s presidentially initiated NSA surveillance program illegal. The ruling denies that “inherent” presidential powers exist outside the constitution. 

This is good, but we shall be waiting to see how the administration gets around it.

Related posts:

1. The Cult of the Presidency: America’s Dangerous Devotion to Executive Power
2. Book Review ~ Reassessing the Presidency: The Rise of the Executive State and the Decline of Freedom
3. Putting the Framers’ Intent Back Into the Commerce Clause

The following piece will not be as abstruse as its title suggests. Rather, it results from the simple observation that, time and time again, some harmful outcome or process commonly attributed to the everyday workings of the market economy actually does exist, but it exists in the realm of the government and politics. Politicians and their friends really ought to be giving us some answers in light of these ills.

The line of attack might be seen as an application of Bastiat’s “broken window” fallacy.

As Murray Rothbard warned us, there are a great many “broken window fal­lacy mongers” about. If nothing else, their activities will keep us on our toes. A handful of examples may suffice and should help demonstrate that a basic understanding of econom­ic principles is critical if we are to understand important causal connec­tions in history and politics.

Let us begin with something that is supposed to be good: the much-heralded Keynesian “multiplier effect.” This is a second-level broken-window fallacy. Here a sophisticated fallacy-monger arrives, just after the free‑market economist has dispelled a first-order fallacy by expounding the “seen” versus the “unseen.” The second­ary fallacy-monger then says, “Oh sure, that sounds good, but there are many things the free-market econo­mist hasn’t told you.”

One such thing is the joyous world of the multiplier. This holds that any money invested in productive enter­prises will stir up great waves of activity throughout the economy at some mathematically constant rate, resting on some functional relationship between big economic aggregates (consumption, investment). Therefore, the state ought to expand the money supply (inflate) to make additional money available. At the end of the happy process, to paraphrase an old song, the solar radiation will be unwontedly great and there will be no precipitation.

Austrian-school economist Rothbard performed a great takedown of this notion with his suggested “personal multiplier.” Faith­fully following the mathematical form of the multiplier principle, he “proved” by reductio ad absurdum that a sum of money given to any reader of his book would, when spent, “prime the pump of a 100,000-fold increase in the national income.”¹

So it appears the Keynesian multi­plier is a theoretical bust. There is, however, a bureaucratic “multiplier effect.” Political scientist Tom Burns writes that kings created bureaucracies so as to govern more effectively and in time found themselves displaced by these officials. Republics and, later, democracies inherited the bureaucracies and ran with them.

As a result, civil society now exists only “as a vast residue from which power and authority have been extracted and distilled into sovereignty.” This works for the state because “Renaissance bureaucracy”—the ancestor of modern bureaucracies—“was a great chain of command” and “[d]ispersing sovereign power through the many chains of command of a bureaucracy multi­plies power.”

Burns quotes the German sociologist Niklas Luh­mann: “Thus power takes on a hierarchic, i.e., reflexive, form in order to be able to accomplish a multiplicity of influences simultaneously. …This extension of power is put through with the aid of such actions as representa­tion, transfer or delegation, which quite innocently sug­gest that the power which is being exercised remains what it was, while they actually multiply its effective­ness.” Luhmann adds: “To apply power to the reinforce­ment of power amplifies the total power available in a social system, by means of a sort of relay technique.”²

So there is a multiplier effect and, even if it isn’t mathematically constant, the state can answer for it.

Then there are claims about “cutthroat,” or “predatory,” competition in business, which is said to lower the moral tone of society and yield sundry zero-sum games. But competition can involve degrees of voluntary coop­eration within an industry, friendly relations between competitors, or it can run to personal rivalries, depend­ing on the personalities involved. It need not become a serious problem until or unless one party brings in the state to strengthen his hand. Even a businessman who loses out to competitors is not annihilated; he can find other work in the same industry or try his hand at some­thing new.

In some cases, fierce competition with outbreaks of violence may arise where property rights are unclear or unenforced, as in the famous “wars” in the Old West between the ranchers and the farmers, not to mention the beleaguered sheep herders. These conflicts were fair­ly manageable, however, compared to real, eliminative competition between states, which we call war. In these competitions, which are indeed predatory, one state may cease to exist altogether, or lose territory to another state.

Economist Jörg Guido Hülsmann has proposed a political “progression theorem.” He argues that states are driven to expand territorially, when possible, in order to gain more revenue, in order to expand further, gain more revenue, and so on. The drawback is, as noted, that losing a major war can mean the “death of a state” (to use Rothbard’s phrase). After two destructive world wars, European states still seek to enlarge their incomes, but having reached the limits of politically feasible taxa­tion, they must enhance their revenues indirectly through inflationary fractional-reserve banking and public debt. As each central bank reaches its limits of monetary expansion, each state’s only hope is to have some even higher jurisdiction prop up its money (since the whole point has been to evade the normal penalties markets finally inflict on counterfeiters).

Expansion by Stealth

With war off the agenda, the bureaucracy of the embryonic pan-European state tries to expand its revenues and jurisdiction by peaceful, indirect means— more carrot than stick—by conning additional states into entering the EU,³ while deliberately failing to address fundamental “constitutional” questions such as withdrawal from the union, an expansion by stealth that nicely recapitulates the strategy of the Federalists in the United States in 1786–1787.

Historians Bruce Porter, William Hardy McNeill, Charles Tilly, and many others have treated eliminative state competition, with its attendant wars, as the main engine of rapid state building.⁴

Thus an inherent, irrational growth dynamic attach­es to states. Businesses, unlike states, know when to quit expanding because of the inbuilt profit-and-loss test. States can be said to expand “irrationally” because they have no such test, in part because the costs involved are not paid by the decision-makers themselves. Their only risk, as noted, is gambling and losing in some armed struggle with another power. This may be a restraint, but it is not as decisive as red ink on the quarterly report.

This is not to say that a state will always and contin­uously strive to expand externally. A state may be unable to extract sufficient resources from production, and cul­tural factors may intrude as well. A state unable to expand outward will certainly be tempted to make more work for itself at home. Successful states like the United States may do both simultaneously. In the case of a suc­cessful imperial state, a real synergy can get underway through institutional “blowback” from overseas policing methods, and such.

However we may sort this out, it seems that states are generally driven to expand in a way that business is not. Business competition is not very much like war at all, except in the realm of bad metaphors. Of course if the state’s regulatory branches shape the environment in certain ways that spread moral hazards everywhere, we can have something like the savings-and-loan scandal of the 1980s. But that came to an end when the free ride ran out; even here the message to quit arrived sooner than such messages seem to come to the state.

While on the subject of irrational growth, I should at least mention the complaints made in the 1940s that the market economy, because of inbuilt defects, could not produce enough growth, whereas Soviet communism doubtless could do so. By the late 1950s the complaint was that there was “too much” growth. Such shifts in attack suggest there is much truth to the famous com­ment of Joseph Schumpeter that, as far as most intellec­tuals are concerned, the guilty verdict against the market is already in, although the details of the indictment may change.⁵

One more item might be mooted before we leave the topic of competition and war. It is that militarism itself generates high time-preference and lowers the social (mar­ket) rate of saving.⁶ In her essay “The Iliad as the Poem of Force,” Simone Weil remarks in passing on the severe foreshortening of time as the fight-keen Achaeans approached Troy. Not knowing how much longer he may live, each Greek’s value-scale shifted dramatically toward present consumption and away from concern for the future.⁷ It is almost superfluous to mention the seedy material culture near any large military base, with pawn shops, strip clubs, and the like, as the dominant businesses.

The Inevitable Trend Toward Monopoly

The idea of an inherent expansionist dynamic brings us to the claim that competitive capitalism inevitably means the “eating up” of smaller enterprisers and the rise and persistence of giant private “monopo­lies.” This charge has been kicking around since the late nineteenth century in the United States, and the failure to address it adequately has led to all manner of histori­cal misunderstanding and bad legislation. Rothbard did address the matter, rather conclusively.

In a hundred-page tour de force,⁸ Rothbard reduced“monopoly” to its proper bulk and resurrected Lord Coke’s seventeenth-century definition of monopoly as “a grant of  special privilege by the State, reserving a certain area of production to one particular individual or group.”⁹ On this understanding, without legal-political barriers to entry even the largest business is not a monopoly; it is simply very good at satisfying the consumers and/or unchal­lenged by good competitors for the moment. But there is genuine monopoly: first, the state itself, which asserts a monopoly of initiating force within a given territory; second, enterprisers working under a grant of exclusive privilege from the state.

Here is how Rothbard describes the evils of monop­oly:

All the effects that monopoly-price theorists have mistakenly attributed to voluntary cartels, therefore, do apply to governmental monopoly grants. Produc­tion is restricted, and factors are released for pro­duction elsewhere. But now we can say that this pro­duction will satisfy the consumers less than under free-market conditions; furthermore, the factors will earn less in the other occupations.¹⁰

Once again, a problem said to arise on the market is to be found in the orbit of the state.

The Market Fosters Disorder and Social Disruption

The charge here is that the market economy, as such, leads to social disruption, social decay, “atomiza­tion” of society, alienation, and the rest. The decline of small towns and businesses will be highlighted. We are all doomed, it seems, to deal endlessly with dizzying and unwanted “social change.” The critics of course often have their own list—of desirable social changes—to be imposed by the state, but that is another matter.

Everyone from the tamest “liberal” centrist to the wildest Marxist or feudal reactionary feels free to make these charges. Paul Baran and Paul Sweezy’s fundamen­talist-Marxist tract, Monopoly Capital, which blamed lit­erally everything deplorable in American life on late, or “monopoly,” capitalism, is just a sample of this genre.¹¹ Nice work, if you can get it; but it seems likely that these critics don’t have the right target in their sights.

I now introduce the Interstate Highway Theorem. It flows from the safe assumption that no capitalist or con­sortium of capitalists would have risked their own money on this “eighth wonder of the world.” The theo­rem simply states that, on their own, free-market partic­ipants would never have put together such a highway system, and of course they did not. We would have had roads of some kind, but not this particular public-goods boondoggle.

The interstate highways grew out of congressional pork-barrel politics and Cold War military-industrial considerations, and were popular because they “made work” for certain contractors and allied unions. Any losses to small towns, or to picturesque American ways of life dependent on those towns, caused by the build­ing of interstates may be addressed to whatever federal departments presided over their construction, enforced eminent domain on wicked “hold-outs,” and subsidized the usual corporate suspects to build those roads. They may not be addressed to the free market.

Another aspect of this alleged problem is the claim that social conditions in market-based societies render people “inauthentic,” cutting the ground out from under true friendship and treading all true fellow-feel­ing under foot. Leaving Jean-Jacques Rousseau, a pio­neer of this attack, to one side, it is enough to consider what the Scottish Enlightenment writers said on the matter in rebuttal. Sociologist Allan Silver points out that for Adam Smith “instrumental” friendships based on exchange (What have you done for me lately?) were actually “more pervasive before commercial society instituted the distinction between markets and person­al relations.” Further, in pre-capitalist societies, as understood by the Scottish thinkers, “the space between friend and enemy was not occupied, as in commercial society, with mere acquaintances or neutral strangers, but charged with uncertain and menacing possibilities.”

Thus the “Scots understand commercial society as limiting instrumental exchange to the newly distinct domain of the market…. Before commercial society, the purpose of friendship, as the Scots see it, was to help friends by defeating enemies….” So it turns out, on the Scottish thinkers’ analysis, that we can see “commercial society, far from ‘contaminating’ personal relations with instrumentalism, as ‘purifying’ them by clearly distin­guishing friendship from interest.”¹²

While we are still on the theme of social disruption, we may ask who causes the bulk of it. Political scientists Youssef Cohen, Brian R. Brown, and A. F. K. Organski have pointed out that a good many Third World conflicts “are defensive in nature: they are all brought about by the aggressive expansionism of the state,” especially where “states are still involved in the primitive accumu­lation and centralization of power resources.” These writers suggest that “over a relatively long period of time state expansion will generate violent conflict” and thus “it is the progression toward greater order itself that pro­duces much of the relatively greater violence we find in new states.”

They conclude that “the evidence strongly suggests that the rate of economic development is related to both the rate of state expansion and collective violence in a way that runs contrary to the way postulated by the dominant view on such matters.” Further, “state expan­sion seems to produce much more violence than economic growth…. Rather than state expansion being an antidote for the violence produced by economic modernization, our rather limited evidence shows that it is economic modernization which is the antidote to the violence produced by state expansion.”¹³

State-building may itself be the fundamental error and so-called “failed states” may well have earned their plight. Of course an array of stupid Cold War tricks played by the great powers in those countries can answer for part of the outcome as well. But this consideration leaves us yet within the realm of state action.

To put matters another way, markets work well at what they are supposed to do; governments work badly at what they are supposed to do. Governments do, how­ever, work well at other things: creating violence, disor­der, and disrupting orderly social life. Since they do so while imposing something they call “order”—by threats, intimidation, and violence—most people are content to imagine that governments are the source of order.

Inflation

Many writers see inflation, especially where it refers to any set of rising prices, as another problem inherent in the market economy. The state must there fore be ever watchful and ready to resort to various stern measures to “fight inflation.” Some critics—for example, the conservative historian John Lukacs—like to talk vaguely of general social inflation: of values, grades, esthetics, and everything. And while he does not lay these ills directly at the feet of the market economy, oth­ers do. For many critics, market relations as such are sup­posed to render everyone radically unstable, rationally self-centered, and prone to go deeply into debt so as to have the whole panoply of consumer goods sooner.

But leaving to one side the cultural question of the inflation of the American ego by Emerson, Whitman, and others, price inflation would seem the primary cul­prit and it comes from the state. If individual rates of time preference are lowered by easy credit, leading to the consequences of which many writers complain, we must inquire into the origins of the easy credit. Obviously, I take it as having been thoroughly shown by Ludwig von Mises and Rothbard, among others, that inflation is the expansion of the supply of money through state-con­trolled central banks, which, if taken far enough, is the cause of economic depressions.¹⁴

The cultural history of the late nineteenth and early twentieth centuries is badly in need of rewriting by a historian who can analytically separate out new methods of mass marketing (for example, by Sears and Roebuck), installment buying, “Fordism,” and the like, from mone­tary expansion by the Federal Reserve. Once this is done, we may expect to learn that “inflationary” excess­es in culture, consumption, education, and so on arose crucially from expectations grounded in easy money.As noted, easy money leads us straight to the state, the cen­tral bank, and their social allies in business and academe who believed that an expanding money supply was the key to prosperity. The unhampered market, once more, may plead innocent.

Market Failure

Dear old “market failure” must necessarily be mentioned here. This notion is basically the obverse of the public-goods problem. Suffice it to say that in the view of some observer, “the market” has failed to do X, or provide much-needed service Z. Part of the problem stems from the tendency to reify the market and then fault this monolithic mechanism or super-mind, or whatever it is supposed to be. But the market is not a thing or a person, but is instead a com­plex and extensive network of bilateral exchanges, which for convenience we call the “market.”¹⁵ Another variant is to complain that exchanges are being blocked by excessive transaction costs or the like, when on the face of it, a particular “market” hasn’t come into being simply because, as things stand, no one wants to exchange the things some observer would like to see exchanged.¹⁶ I don’t know who is supposed to keep track of missing markets that should exist, unless of course it is the state.

But we must leave this topic for now, since it is large enough to justify treatment elsewhere.

The alleged “atomization of society” brings us to the grave problem of “social action.” It is interesting that whenever successful social action takes place, as it does all the time, governments and their apologists immedi­ately denounce it as a dreadful evil, because the people cooperating do not do what these observers would like them to do. Actually occurring social action always turns out to be the wrong kind, and is reinterpreted as a social problem.

One thinks of the gathering attack on societies in which kinship relations help structure business relations and markets—as in East Asia, for example. This, appar­ently, is the most wicked “crony capitalism,” which, lack­ing transparency and the like, must be corrected by whatever superpower happens to be in the neighbor­hood. But from a free-market standpoint, what is actual­ly wrong with doing business with your cousin, if the state as such is not in the picture?

Stamping out “ethnic” allegiances in trade in the name of market freedom, “transparency,” and fairness might sound good to some people, but who exactly would do the stamping? Obviously, it would have to be the state, which is the indispensable culprit in crony cap­italism to start with. (This is a key in Russia and China, where it is often the former communist bureaucrats who are today the state-connected crony capitalists.)

During the Vietnam War, well-placed American social scientists studied the supposed failure of social action in South Vietnam. What this seems to have meant is simply that such social cooperation as existed failed to generate much support for the South Vietnamese state sponsored by the United States. Given the alleged absence of a properly functioning social structure, one theorist suggested that the South Vietnamese state sub­stitute itself for the missing intermediate structures.¹⁷ We cannot resolve here the obvious problem that if the state provides the structures, they will no longer be very intermediate.

It is probably not market relations that have leached away people’s personal autonomy, thereby reducing their ability to cooperate and undertake social action. Once again, I would suggest looking in the direction of the state.

Tying of Services and Products

Another complaint is that businesses attempt to “tie” goods and services to one another, rendering the poor consumer dependent on one product line. They may well try, but other actors in the market and con­sumers themselves will find ways around this practice.

It is otherwise with the state. As Sheldon Richman has mentioned to me, states “tie” their “products” and “services” all the time. As a precondition of driving on government roads, you get to patronize the govern­ment-sponsored insurance cartel. In some states you get to have your car checked by a government-sponsored mechanic. Go to a government airport and you get a taste of the government’s idea of providing security.

And your Social Security number, which Congress swore would never become a national ID, is fast coming to resemble a Soviet-style internal passport.

Even on the most pessimistic reading of this issue, the market remains well ahead of the state.

Now we come to the claim that business corrupts politics. Well, yes and no. Politics does not seem to require much corrupting.

Naturally, there are plenty of actual businessmen who are happy to enlist the state to restrain trade for them, grant them subsidies and bounties, and the rest. They try to use the state for their economic advantage. This is the “instrumentalist” view of the state, which holds true across a wide range of activities and which is, despite what some writers think, entirely compatible with a great deal of state “autonomy.” After all, if the state did not have independent power, it wouldn’t be much of an aid to these interest groups, would it?

There is indeed plenty of business-government col­laboration around, enough to justify calling it by its own name: corporatism.¹⁸ Since such practices are the antithesis of laissez-faire liberalism, it is hard to see how the free market can rightly get the blame for them. We are back in the ballpark of the state again, this time with some of its allies.

I have long believed that if a given society had suf­fered, successively, a drought, a famine, and a flood, fol­lowed by a popular revolt set off by grinding taxation and, finally, a foreign invasion, the typical historian would lay primary blame for the unhappiness of the people on the failure of the market economy. We have just seen this kind of judgment made in relation to the disaster in New Orleans.

Even if we were somehow to blame the sinking of New Orleans on politicians who talk a lot about free markets, this has nothing to do with any real chain of causation that would reach back to the free market. The talkers currently in office have famously spent hundreds of billions of dollars on misbegotten war in Iraq, which suggests that their talk about frugality, free markets, and the rest is so much eyewash. There is no disembodied “free-market ideology” stalking the country and forcing the poor government to leave levees in disrepair or unimproved.

Talk is cheap, not frugal.

After all, despite the alleged outbreak of frugality, bil­lions upon billions of dollars still flow into the federal treasury and bureaucrats still manage to spend them. Neither the people nor the free market—conspicuous by its absence–should answer for bad decisions made by officials allocating money taken from the toiling masses. Probably if you have a levee, you ought to maintain it. This is entirely separate from the question of whether government should have been in the levee-building business in the first place, or whether people should live in flood zones. Tackling these questions would involve us in an historical regression into the remote origins of a situation significantly shaped by government, a situation fraught with peril if the government should ever let its own creations slide.

The buck still stops with the federal government because it took the bucks, some of which could have fixed its levees, and then did not do so. Leaving aside the ethics of how governments get their money, the United States had plenty of it, and chose to squander much of it on a night out in the Middle East. The left is right to point this much out.

But the left will not follow us further along our path of analysis. This particular mixture of state activity and inactivity—Iraq versus New Orleans—goes to such questions as whether governments are very good at managing anything and whether states can even calcu­late rationally. Our best evidence says, no. As Rothbard puts it, “[T]he costs of government are bound to be much higher than those of the free market…. [T]he State cannot calculate well and therefore cannot gauge its costs accurately.”¹⁹

So, no, the free market did not sink New Orleans, nor did its shambling cousin, the disembodied and selective free-market talk found in and around the Republican Party.

A Parthian Shot

The last topic broached reminds us that the Repub­lican Party habitually proclaims its fervent wish to put government “on a businesslike basis.” Democrats usually favor putting business on a government-like basis. The difference between the two programs is this: the second is possible and it could go forward, up to the point that social cooperation and markets collapse; the former is literally impossible.

Government cannot be put on a businesslike basis because it lacks the profit-and-loss test available to busi­nesses on the market. Thus it doesn’t know when to stop doing something, short of a disastrous setback, cannot calculate its costs, and so on. But enough about govern­ment; I think we can agree that for the topics just can­vassed at least, the market is not guilty and the state is about to enter the witness box.

Notes

1. Murray N. Rothbard, Man, Economy and State, vol. 2 (Los Angeles: Nash Publishing, 1970 [1962]), p. 759.
2. Tom Burns, “Sovereignty, Interests and Bureaucracy in the Modern State,” British Journal of Sociology, December 1980, pp. 494–95.
3. Jörg Guido Hülsmann, “Political Unification: A Generalized Progression Theorem,” Journal of Libertarian Studies, Summer 1997, pp. 81–96.
4. Bruce Porter, War and the Rise of the State (New York: Free Press, 1994), William Hardy McNeill, The Pursuit of Power (Chicago: University of Chicago Press, 1982), and Charles Tilly, “Warmaking and Statemaking as Organized Crime,” in Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds., Bringing the State Back In (Cambridge: Cambridge University Press, 1985), pp. 169–91.
5. Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper & Row, 1950), p. 144.
6. On war and time preference, see Hans-Hermann Hoppe, “Time Preference, Government, and the Process of De-Civilization,” in John V. Denson, ed., The Costs of War (Auburn, Ala.: Ludwig von Mises Institute, 1999), pp. 455–508.
7. Si^an Miles, ed., Simone Weil: An Anthology (New York: Weiden­feld & Nicolson, 1986), pp. 174–75,181.
8. Rothbard, chapter 10, “Monopoly and Competition,” pp. 560–660.
9. Ibid., p. 591, Rothbard’s wording, not Coke’s.
10. Ibid., p. 789.
11. Paul Baran and Paul Sweezy, Monopoly Capital (New York: Monthly Review Press, 1970).
12. Allan Silver, “Friendship in Commercial Society: Eighteenth-Century Social Theory and Modern Sociology,” American Journal of Sociology, May 1990, pp. 1481–82,1484, and 1487.
13. Youssef Cohen, Brian R. Brown, and A.F.K. Organski, “The Paradoxical Nature of State Making: The Violent Creation of Order,” American Political Science Review, December 1981, pp. 904, 907–909 (italics added).
14. Rothbard, pp. 745–47.
15. For all that has been said against nominalism, sometimes we are dealing with a name.
16. One could almost call this the Chicago School variant.
17. Charles A. Joiner, “The Ubiquity of the Administrative Role in Counterinsurgency,” Asian Survey, August 1967, p. 553.
18. See Robert Higgs, Against Leviathan: Government Power and a Free Society (San Francisco: Independent Institute, 2005).
19. Such problems are in a way the socialist calculation problem writ small; see Rothbard, pp. 803 and 825–26, where he notes that under socialism “each governmental firm introduces its own island of chaos into the economy; there is no need to wait for full socialism for chaos to begin its work” (p. 826). Obviously, the principle applies in its prop­er degree to government “firms” or departments under present-day “mixed-economy” corporatism.

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